1 Context and history

Walgrave has refined but not changed his view of restorative justice since he and Bazemore originally formulated it in 1999. The late 1990s was a formative time for the restorative movement following Howard Zehr’s (1990) Changing Lenses. In 1999, the Council of Europe Committee of Ministers to Member States published Recommendation No. R (99) 19 concerning Mediation in Penal Matters, and this had a significant influence on the development of mediation within criminal justice in European countries, including Belgium, where Walgrave works. In 2000, the Review of the Criminal Justice System in Northern Ireland introduced restorative justice to the mainstream of the youth justice system in my country. In the year 2000, the European Forum for Restorative justice was established.
It was a significant time in the development of restorative justice in Europe. But it was over twenty years ago. The problem with attempting to define a social phenomenon is that no sooner has it been defined, the definition is out of date. As Nietzsche (1897/2006: 53) wrote:

Today it is impossible to say precisely why people are actually punished: all concepts in which an entire process is semiotically concentrated defy definition; only something which has no history can be defined.

Restorative justice has a history, and the field continues to develop and adapt as social and cultural contexts, in which harmful behaviour occurs, change. After over twenty years of working within the criminal justice, I, like Walgrave, was eager to embrace the new law on restorative justice in Northern Ireland. I too was motivated by a wish to transform the youth justice system into a more humane and less punitive system for responding to young people who had committed crimes (Zinsstag & Chapman, 2012). I remember Terry O’Connell in the late 1990s telling me that he wanted to change the way the police worked when he developed his model of restorative justice (Wachtel, O’Connell & Wachtel, 2010). The influential International Institute for Restorative Practices (IIRP) emerged from the Community Service Foundation and Buxmont Academy, which provides rehabilitation programmes in Pennsylvania, USA, for young people who are at risk or have broken the law. Wachtel’s fundamental unifying hypothesis of restorative practices – that

human beings are happier, more cooperative and productive, and more likely to make positive changes in their behavior when those in positions of authority do things with them, rather than to them or for them (Wachtel, 2016: 2).

– almost certainly originated in the context of managing these young people.
In defining restorative justice, context is critical. The way we see a practice depends on where and for what we are standing. Walgrave stands for a scientific methodology which controls the risks of subjective intuitions and beliefs in generating shared knowledge. In this way, research can explain why restorative justice is ‘better’ than traditional criminal justice.
There are risks in arguing for an approach because it is an improvement on the existing system. It tends to dichotomise arguments and blinds one to both the positive aspects of the system and the limitations and failings of restorative justice. Not only does its arguments depend on the concepts, values and priorities of the system (see the ‘imitator paradox’ of Pavlich [2005]) , but it also activates the instinctive urge of a criticised system to defend itself and to resist by colonising the new threat (Chapman, 2022).There are also risks in the adoption of consequentialism. While Walgrave sees it as a powerful challenge to a punitive penal system, Gade (2022) employs the consequentialist approach to justify using restorative justice as a form of punishment. It seems to me that the consequence of prioritising the judicial outcome over the process of dialogue between the victim and the perpetrator risks transforming reparation from the act of making amends into an experience of punishment.
Walgrave does acknowledge the impact of context, comparing restorative practices in criminal justice and in schools: ‘they deal with different matters in different contexts, with different actors and even with different purposes’ (Walgrave, this issue). Walgrave asserts that it is necessary to ‘indicate the objectives of a restorative intervention, so that its success or failure can be assessed’. This is a language with which I am familiar, having worked for many years in the criminal justice system. Words such as objectives, intervention, success and failure seem to me to have a managerial and magisterial quality, reflecting the vantage point of a system which requires accountability from those who deliver services.
Restorative justice depends on the permission and the funding of more powerful systems such as criminal justice and education. It cannot construe itself solely within its own frame of reference. Its identity is a product of a dialogue between it and the environments in which it operates, which are constantly changing. Restorative justice is a practice which carries cultural and relational values which cannot be understood without context. The search for the essence of restorative justice will always be elusive.

2 Crime rather than harm

When Walgrave, in this issue, situates restorative justice firmly within the context of criminal justice, he purposefully limits its definition and scope and, in doing so, he relies on some key criminal justice concepts – doing justice after the occurrence of crime requiring judicial coercion. I want to examine these concepts and to suggest that they limit our understanding of restorative justice and restrict its potential not only in society but also in criminal justice.
Walgrave chooses to refer to crimes or offences. Restorative justice tends to focus on the harm that crimes and other behaviours cause. This starting point is significant, as crimes are defined by the laws which require professionals to enforce and a system to manage offenders’ progress through the process of investigation, prosecution and sentencing. Inevitably, the quality of doing justice is conditioned by government policy, allocation of resources and strategic management designed to achieve the system’s goals.
While Walgrave states that hate crimes must be treated as offences and responded to restoratively, he does not acknowledge the very low reporting in most jurisdictions of race hate crimes and of other crimes such as gender-based violence. Most victims have little confidence that the criminal justice system will be effective. Policymakers are aware that if all such offences were reported to the police, the system would not be able to meet demands. What distinguishes Walgrave’s concept of restorative justice is not so much his emphasis on clear objectives and measurable outcomes, but his adherence to the context of the criminal justice system. It is based on an implicit assumption that the only legitimate opportunity to restore justice is within the system. This restricts the application of restorative justice to address hate crime outside the criminal justice system.
Walgrave disregards the emphasis that theorists (e.g. Pali & Pelikan, 2010) and practitioners place on the ‘social’ rather than the ‘judicial’. This involves a new starting point: the ‘lifeworld’, the lived experience of people or social groups who have been harmed and those responsible for harm.

Starting with the perception of crime as a disruption or disturbance of human relations, of people living together, means starting from and attending to the immediate emotional experience of the persons involved and the concrete needs originating from this experience (with an emphasis on the victim) (Pali & Pelikan, 2010: 3).

This means that the problem that restorative justice addresses is what to do about the harm that a crime causes, rather than what to do about the person who has committed the crime. This core element of restorative justice is not recognised in Walgrave’s vision. Entering the context of the lifeworld (Habermas, 1987) means that restorative justice requires the active participation of people in facilitated dialogues on what arises for them from a harmful act. The restorative process is not a strategic attempt to achieve planned outcomes. Of course, it does have outcomes. They emerge from people communicating rather than systematic implementation of strategy.

3 Inclusion and participation

The inclusion and active participation of the victim and perpetrator of a harmful act are core elements of restorative justice (EFRJ, 2021; Pali & Pelikan, 2010; United Nations Office on Drugs and Crime, 2020). These principles distinguish it from the formal legal process, particularly in the case of victims. Walgrave acknowledges these principles. However, his discussion of Daly’s work seems to expose an anxiety over the concept of participation as shifting the focus from outcome to process.
Walgrave refers to ‘doing justice after the occurrence of an offence’. This is a clear statement of the aim of the modern criminal justice system. He takes as given the juridical procedures and sanctions designed to achieve the aim of justice as defined by the law. This confidence in the justice system may not be shared by all victims and perpetrators. Inclusion does not just refer to enabling people to be in the room when decisions are being made. It includes dialogue about their understanding of what the harm means to them and what needs to be done to restore what has been lost, damaged or violated. Idiosyncratic perspectives and emotions emerge from such dialogues. Restorative processes can accommodate these very personal and subjective truths.
Pemberton (2019), based on his reading of Shklar (1990), makes the distinction between the professionals’ orientation towards the outcome of ‘doing justice’ and victims’ orientation, originating from the concrete experience of harm, being generally more preoccupied with ‘undoing injustice’. This means exchanging narratives of what happened, asking questions to complete the gaps in what each person knows and making requests which will address what matters to them. It is difficult to distinguish process and outcome in restorative justice. In Walgrave’s approach, participation would be restricted to criminisable matters and to achieving specific reparative outcomes.

4 Restoration

The emphasis on reparation may limit the potential of restorative justice to those harms that require repair, such as damaged relations or financial loss. These harms lend themselves to mediation. However, in the imagination of prosecutors and judges, they restrict referrals to less complex and less serious harms. It is true that not all harms are reparable. Walgrave believes that without reparation, restoration is impossible. This is not consistent with the evidence of the lived experience of both victims and perpetrators. Restoration is a much more open and flexible concept. Skilful preparation with both victims and perpetrators can ensure that what lies beneath the surface of injury and loss is explored, discovering what really matters to each party. Restoration cannot restore the situation that the parties experienced before the harm took place. But it can often improve the situation. In such cases, restorative justice is not merely reactive but generative, leading to more resourceful individuals who have regained respect and power and control over themselves and their lives. Victims’ narratives can be validated. Perpetrators can seize the opportunity to demonstrate that they can right the wrong they committed against the victim. Victims can have questions that have tormented them answered.
I have argued so far in this contribution that Walgrave’s definition of restorative justice is conditioned by his insistence that it must be understood in the context of the criminal justice system. His definition is designed to correct how much restorative justice has changed over the past twenty years. In doing so, he does not include important restorative concepts such as harm, lived experience and restoration in his understanding of restorative justice.
Yet even within the context of the criminal justice system, Walgrave’s vision is limited to judicial decision-making. This means that he does not include the use of restorative justice to divert perpetrators from prosecution in his examples. Furthermore, victim-initiated restorative processes after sentencing, often taking place in prison, are not discussed. The outcomes of such restorative meetings depend on what matters to the victim and generally do not result in reparation. Restorative circles can be facilitated to improve relationships in prisons, and family group conferences can prepare prisoners for resettlement in the community. Walgrave’s definition limits a creative engagement between the criminal justice system and restorative justice that results in system reform with which he would probably agree.
There is no one restorative justice. If that is confusing to academic researchers, they need to adapt their methodologies so as to study the many realities of restorative justice, rather than demand that restorative justice should be standardised to fit within the needs of researchers. The people who benefit from restorative justice do not think too much about the definitions of the processes that benefit them or the needs of academics. They are motivated to address what matters to them effectively and safely.

5 Authority

In addition to context, there is another distinction between Walgrave’s consequentialist model and how restorative justice is developing in practice, and that relates to ‘authority’. Walgrave assumes restorative justice occurs as part of a sentencing process and, consequently, believes that practitioners must get ‘their hands dirty’ and accept the indispensability of coercion in judicial decisions. Consequentialism depends on the authority of legal professions.
Increasingly, restorative justice is accommodating the reality and impact of relationships of power in both the conditions that lead to harm and how these need to be managed in a safe and effective restorative process. This is particularly apparent in the experience of harm through gender-based violence, hate crime, institutional abuse and environmental injustice.
The concept of authority in restorative justice can be traced back to the work of Christie (1977), who argued that the ownership of citizens of their conflicts should be recognised and facilitated. Republican theory of criminal justice (Braithwaite & Parker, 1999; Pettit & Braithwaite, 2000) is based on the concept of ‘dominion’, spaces for direct deliberative engagement protected by democratic values and rights as exemplified by restorative processes, which facilitate dialogue free from domination and coercion.
Restorative justice practice at its best respects the authority of victims and perpetrators by listening to them carefully and respecting their lived experiences and their choices. Pemberton, Aarten and Mulder (2019) explain how ownership of their narrative is important to victims and how these narratives are often contested and disrespected. People engage in victim-blaming and stereotyping. Criminal justice professionals have constructed their own narratives of victims at the service of the system’s outcomes. Some models of restorative justice are also responsible for imposing restorative values in their framing of the victim’s experience through a generic script (e.g. Wachtel et al., 2010). There is a real risk that Walgrave’s consequentialist approach to restorative justice would force victims’ narratives into a frame that serves the outcome of reparation rather than their interests. Restorative justice enables victims and perpetrators of harm to construct a sense of coherence (Antonovsky, 1987) which helps them understand, manage and find meaning in their experience. This not only enables them to articulate their experience of harm and injustice but is also compatible with trauma-informed practice (Herman, 1997, 2023).
This is achieved through facilitating the parties’ accounts of what happened and offering an opportunity to ask questions and to make requests. Respect for the lived experiences, emotions and what matters to the parties mitigates the marginalisation and epistemic injustice that they normally endure. An important outcome for many victims who participate in restorative justice is the restoration of the power and control that was violated by the crime. A restorative process can also enable perpetrators to gain support to restore their control over the conditions that are sustaining their offending.
Walgrave’s article gives examples of restorative outcomes which are similar in some respects to what I have just written. ‘Restorative encounters are promoted because they facilitate (expressions of) respect and support, mutual understanding, regret, willingness to make up and willingness to accept it. These are restorative outcomes.’ Yet, for me, Walgrave’s account of restorative encounters describes what happens during the process rather than what comes out of the encounter. This illustrates the difficulty in distinguishing process and outcome in restorative justice.

6 Process or outcome?

This leads me to wonder, is the distinction between process and outcome simply a construction designed to support managerial concerns and to clarify research methodology? Research into victims’ experience of restorative justice (Angel et al., 2014; Bolitho, 2015; Bolívar, 2010; Gustafson, 2005; Jülich & Landon, 2017; Lloyd & Borril, 2020; Ten Boom & Kuijpers, 2012) has found that participation in restorative processes can offer validation, vindication, apology, restoration of power and relieve victims from distressing emotions such as shame, anger and fear and other symptoms of trauma. These benefits occur both as part of the process and as an outcome of the process. Victims do not make the distinction between process and outcome. They see their experience of participating in a restorative process as one positive and important step on their way towards recovery. In other words, the restorative process does not achieve what matters to them in isolation of many other actions; for example, their own agency, support from friends and family, or therapy. I suspect that this also applies to the experiences of those who perpetrate harm. This presents problems for researchers and suggests that criminal justice and restorative justice practitioners should cultivate professional humility. Influenced by Ferrara’s (2008) theory of exemplarity, I have come to see restorative justice as an experience that can have an intrinsic value rather than as a strategy to achieve a planned outcome. When approaching victims and perpetrators, I advise practitioners to seek their permission to engage with them and then to invite them to consider the possibility of a unique meeting between specific people, in a specific place, for a specific period of time – with the purpose of addressing what matters to them through active participation in a fair process of dialogue, facilitated by a trained practitioner, following agreed protocols which keep participants safe, respectful and honest.
I do not wish readers to conclude that I believe that rigorous research has no part to play. I agree with Walgrave when he writes, ‘If well done, the scientific approach to restorative justice deepens the idea, strengthens its innovative power and enhances its credibility as a practice and a movement.’ This requires a creative approach to designing methodology that is fit for purpose when applied to the diverse contexts in which restorative justice is implemented.

7 Conclusion

The key source of my criticism of Walgrave’s position on restorative justice is the apparent absence of people. He clearly works and perceives restorative justice within the context of the system designed to respond to the occurrence of offences. I am increasingly convinced that restorative justice starts within the lifeworld. This requires it to adapt to the many more powerful systems in which it must work. After many years working within systems, I still believe that the radical engagement with the reality in which people live slowly generates more humane systems.
As a result, I define restorative justice by the values which drive it: human dignity, solidarity, justice and truth. Its processes are based on principles of inclusion, participation and restoration that are supported by the evidence of research and the evidence of lived experience and practice. Fundamentally I agree with Walgrave that the key to restorative justice is its pursuit of justice because injustice occurs in many contexts. Unfortunately, the criminal justice process has been found to be ineffective, in many cases, in undoing injustice and, in many contexts, is damaging to people.
Walgrave’s perception of Llewellyn’s (2021) vision differs from mine. He understands Llewellyn as believing that all activities designed to generate just relations should be considered as restorative justice; I believe she is saying that all activities considered to be restorative should be concerned with just relations. The succinct description of restorative justice adopted by the European Forum for Restorative Justice is ‘Connecting people to restore just relations’. Restorative justice takes small steps to developing more respectful, more just, more inclusive, less hierarchical and more participative societies.
Is it sensible to restrict such a valuable process to ‘criminalisable’ injustices?
To finish on a lighter note, Norbury (2021: 12), in his book Big Panda and Tiny Dragon, writes this short dialogue: ‘“Which is more important,” asked Big Panda, “the journey or the destination?” “The company,” said Tiny Dragon.’