Compulsory Compassion: A Critique of Restorative Justice

Vol. 14 No. 6 (June 2004), pp.446-448

COMPULSORY COMPASSION: A CRITIQUE OF RESTORATIVE JUSTICE, by Annalise Acorn. Vancouver: University of British Columbia Press, 2004. 224 pp. Cloth USD$85.00 / CDN$116.55. ISBN: 0-7748-0942-6. Paper $29.95/ CDN$41.00. ISBN: 0-7748-0943-4.

Reviewed by J.H. Bogart, Bendinger, Crockett, Peterson, Greenwood & Casey. Email: jhb@bendinger-crockett.com

COMPULSORY COMPASSION is intended as a critique of “Restorative Justice.” The book is divided into six chapters, followed by a short Epilogue. The first chapter functions as an introduction, laying out general tenets of the collection of theoretical positions self-identified as accounts of “Restorative Justice.” This chapter also includes Professor Acorn’s account of her own attraction to and later rejection of “Restorative Justice.” The overarching idea of Restorative Justice is that we ought, in response to wrongdoing, facilitate the repair of proper social relations between the wrongdoer and the wrongdoer’s victim. That general idea stands in contrast to the retributive idea that the wrongdoer deserves hard treatment, and the deterrence view that we ought to arrange things so as to minimize further wrongdoing. At a more concrete, but nevertheless still quite general level, Restorative Justice aims at tying the social responses to wrongdoing to the reconstruction of harmonious relations among members of a community. Said another way, the criminal justice system should be less concerned with punishment and incapacitation, less concerned with rehabilitative training (which largely amounts to job training and substance abuse therapy), and more concerned with formation of positive personal relations between convict and victim, mutual recognition as fully human persons, and acceptance and discharge of responsibility for prior conduct. The thief should understand that the property and non-property injuries he has inflicted are not mere dollar losses, but have larger and more lasting effects. He should make restoration and internalize the wrong done. He should make amends. The victim, in turn, should see the thief as a person acting for recognizable reasons, not simply an antisocial troll.

Chapter Two presents a coherent theoretical account of and grounding for Restorative Justice. Acorn’s account, following other advocates, traces Restorative Justice to strands of Christian theology and to Ghandi’s theory of non-violence. Here too the theoretical structure is neither surprising nor obscure. The injunction to love one another does not have a termination clause in the event of sin or crime, and a Christian community has theological obligations to minister to—which is to say to retain within the community—those who do wrong. Further, Christians are enjoined to forgive, while the wrongdoer has symmetrical duties of reform and forgiveness. Similarly, a Ghandian should seek the humanity in—i.e., animate the moral conscience of—wrongdoers. In each of these approaches, the objective is to rejoin [*447] wrongdoer and victim within the community as whole members, insofar as that is practicable.

The following four chapters critique various aspects of theories of Restorative Justice. Chapter Three focuses on what Acorn terms the “Three Pillars of Restorative Optimism.” The first pillar is the view that the reciprocal connection between justice and punishment can be replaced by reciprocal relations between justice and mutual respect. The second pillar is a faith that appropriate encounters between the convict and victim will alter the offender so that he will engage in respectful relations with the victim and the larger community. The third pillar is the faith that through an appropriate victim-offender encounter, the victim will be aided in healing. Professor Acorn argues that each pillar, at best, stands on sand. She offers two structural attacks – the details vary, but not the strategy. Each of these three optimistic theses entails an implausible view of social relations and psychology, and each therefore either is improbable, because it is impossibly demanding, or represents just empty words. Thus, the first pillar is suspect because it fails to give real credence to the “vengeful” impulses animating retributive visions of criminal punishment. The notion that an encounter with the victim will transform a convict, or have any lasting effect, is Pollyannaish wishful thinking, and so on.

Chapter Four addresses the role of sentiment in Restorative Justice. This relatively short chapter seems to be built around the thought that Restorative Justice invokes an anesthetic of sentiment: the tearful forgiving embrace of wrongdoers and victims. In that sense, it is a discussion of certain rhetorical tropes of argument for Restorative Justice. Chapter Five discusses “eroticization of justice.” Here, Professor Acorn is concerned with arguments that love, including erotic love, can lead to greater moral sensitivity, which should in turn lead to a better sense of the demands of justice. The idea seems to be that love leads to greater recognition of the full humanity of others. Recognition of others as human—i.e., genuine recognition of others as persons on a par with oneself—is a route to acceptance of the demands of justice. This chapter is, as it turns out, largely taken up with Professor Acorn’s evaluation of Prof. Martha Nussbaum’s essay on Adam Smith and Dickens’s DAVID COPPERFIELD, and the role of sentiment in Smith’s moral philosophy.

The final chapter attempts to turn from the high aspirations of love to a more practical claim that Restorative Justice enables compassion to have a proper and effective role in justice. Professor Acorn provides a discussion of Nussbaum on Aristotle on compassion, which again takes up most of the chapter. It is followed by a discussion of the procedure by which a convict and victim may encounter one another in such a way as to elicit compassion. In a short Epilogue, Professor Acorn offers a quick description of her preferred utopia and a concluding attack on pacifism.

The second chapter of this book is the best – it offers sustained, intelligent exposition and analysis. While not satisfactory as philosophy, it is fair to its topic. The remainder of the book is on a different scale and is far less satisfying. All of the chapters share a proclivity for [*448] “just so” stories. While Professor Acorn is quick to dismiss her opponent’s tales, she seems blind to the pointlessness of her own. Happy fictions are not arguments. “Just so” stories are neither support nor detract from the theories – they are simply filler. The discussions of Nussbaum are interesting, but they have little to do with the problems at hand. Whether or not Nussbaum is right about Aristotle’s account is irrelevant to whether a plausible theory of Restorative Justice can be (or has been) constructed. These problems are symptomatic of a more fundamental failure. Professor Acorn does not seem to have given much thought to what Restorative Justice is about. Although there is a good deal of talk about justice, nowhere does she explain what the concept means in this context. Is Restorative Justice a theory of punishment? Punishment by the state? Punishment of crime? There are, after all, a large number of other circumstances and sorts of punishment, many of which are quite important both socially and philosophically. In what sorts of communities would the theory apply? Perhaps Restorative Justice is peculiarly valuable when used in connection with particular populations—e.g., first time offenders or first time juvenile offenders. It is surprising that a book about criminal punishment makes no effort to develop the relationship between the theory of punishment under consideration and relevant sociological information. Such possibilities are crucial to a full and fair assessment. One of the lessons one could draw from the rather extensive literature on theories of punishment is that the facts make a difference. However, the arguments here proceed without sustained consideration of relevant facts. That strategy might succeed if the examination attended instead to the logic of the theory, but Acorn does not do that either.

Professor Acorn assumes the defects of Restorative Justice are greater than the defects of alternative theories. Perhaps they are, but it is far from obvious, and she offers no basis for this conclusion. Furthermore, one wonders why Professor Acorn made no effort to enhance the foundations of the Restorative Justice enterprise. For example, one obvious source for thinking about Restorative Justice is Hegel and the Hegelian theories of punishment, which are almost entirely ignored.

I agree with Professor Acorn that Restorative Justice is a hopeless cause. Her arguments, however, do not make that case. Although, as she notes, she once found hope in Restorative Justice, the evidence of this book suggests that she joined and left because she fell in and out of love with rhetoric. Unfortunately, the book is short on both evidence and sustained analysis. Restorative Justice still lacks a theory and still lacks a critique.

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