Restorative Justice: A Marxist Analysis Raymond Anthony Koen Thesis Presented for the Degree of DOCTOR OF PHILOSOPHY in the Institute of Criminology Faculty of Law UNIVERSITY OF CAPE TOWN August 2005 Supervisor: Professor Dirk van Zyl Smit The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgementTown of the source. The thesis is to be used for private study or non- commercial research purposes only. Cape Published by the University ofof Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University ABSTRACT Restorative Justice: A Marxist Analysis RAKoen Abstract Restorative justice is the enfant terrible of the criminological world. In no time, it has rocked the edifice of the criminal justice system, challenging the latter's very existence. It has inculpated the retributive focus of criminal justice in the creation and reproduction of the contemporary crisis of criminality. It has proclaimed itself to be in possession of the solution to that crisis. And it has offered itself as the path to a higher plane of human existence characterized by respect, trust, mutuality, and the like. The restorationist answer to the crisis of criminality is a radical one. Taking their theoretical lead from Nils Christie, the adherents of restorative justice propose the privatization of the criminal episode. That is, they contend that crime should be removed from the public arena and reconstituted as a private conflict in which victim, offender and community all have an interest as 'stakeholders'. The crime should be comprehended as the property of these 'stakeholders' who may dispose of it according to terms and conditions which they negotiate inter se, without reference to a public authority. The proponents of restorative justice believe that this was humankind's aboriginal response to criminal conflict and that it succeeded in a way that statist criminal justice never has. They therefore advocate that we should take our adjudicative cue from our ancestors, and revert to our restorative instincts. Two versions of restorative justice may be identified. Firstly, there is a comprehensive version which proposes the abolition of the criminal justice system as a public institution. In other words, it anticipates the complete 11 separation of criminal justice and the state. All criminal conduct is to be resolved privately, according to the designs of the triad of 'stakeholders'. Secondly, there is a partial version which proposes a sphere of privatized justice within the public system. In other words, the state surrenders designated criminal conflicts for private resolution, but remains in overall command of the criminal justice system. Although it devotes some attention to partial restorative justice, this dissertation is concerned primarily with the analysis of comprehensive restorative justice. The approach adopted is a critical one, informed by the tenets of Marxism. That is, the dissertation is a Marxist critique of comprehensive restorative justice. It deploys the analytical resources of Marxism in an attempt to excavate the ontological presuppositions of restorative justice and to confront its core principles. The hope is that the Marxist method will lay bare the hidden constitution of restorative justice, which constitution is routinely obscured by its form. The analysis is located at two levels of abstraction. At the lower level, it follows the traditional Marxist endeavour to uncover the class content of restorative justice. Here the operational principles of restorative justice are subjected to Marxist class analysis. At the higher level, the analysis seeks to comprehend restorative justice as a legal form. Here the argument relies upon the non-traditional general theory of law elaborated by Evgeny Pashukanis. The general theory posits that the analysis of the legal form should proceed in terms of its relation to the commodity form. The critique of restorative justice presented here seeks to interrogate it as a legal form of late capitalism. This is the postmodern epoch of capitalism, marked by 'the commodification of everything'. In other words, it is an epoch in which the commodity form enjoys absolute supremacy. Pashukanis's general theory of law is used to analyse restorative justice as a legal form which commodifies criminality. TABLE OF CONTENTS 1lI Table of Contents Abstract i Introduction 1 Chapter One: Methodological Matters 19 1.1 Classical and Post-classical Marxism 20 1.2 Form and Content 23 1.3 Idealism and Material ism 25 1.4 Monism and Dualism 28 1.5 Dialectical and Formal Logic 29 1.6 Against Triadicity 32 1.7 For Historicity 34 1.8 Sociality and Historicity 36 1.9 The 1859 Preface 38 1.10 The Preface and the Reconstructionists 41 1.11 Rendering Marxism More Profound 44 1.12 The Unity of Social Reality 49 1.13 The Process of Abstraction 51 1.14 Abstraction versus Model-Building 53 1.15 Marxism and Determinism 55 1.16 Socio-economic Determinism 59 1.17 Making History 61 1.18 The Problem of Legality 64 1.19 What Problem? 66 1.20 Social Relations and Property Relations 69 1.21 Marxism and Jurisprudence 71 iv Chapter Two: Historical Perspectives 74 2.1 Restoration and Retribution 76 2.2 Marxism and Social Evolution 79 2.3 Savagery and Primitive Communism 84 2.4 Barbarism and the Rise of Gentile Society 88 2.5 Civilization and the Rise of Class Society 91 2.6 Property, State and Law 93 2.7 The Maine Thesis 95 2.8 The Public and the Private 97 2.9 Prehistoric Conflicts and Blood Revenge 101 2.10 From Blood Revenge to the Lex Talionis 104 2.11 The Rise of Civilization: From the Lex Talionis to Composition 107 2.12 The Asiatic Mode of Production 112 2.13 The Slave Mode of Production 118 2.14 The Feudal Mode of Production 124 2.15 The Age of Absolutism 131 2.16 The Rise of the Capitalist Mode of Production 137 2.17 Corporal and Capital Punishment 138 2.18 The Political Economy of the Prison 139 2.19 The Abandonment of the Victim 143 2.20 The Rediscovery of the Victim 147 2.21 Capitalism in Crisis 148 2.22 Welfare Capitalism 150 2.23 Privatization and Popular Capitalism 152 2.24 Conclusion 157 v Chapter Three: The Claims of Restorative Justice 159 3.1 Privatizing Criminal Justice 160 3.2 The Restorative Sanction 164 3.3 The Restorative Process 167 3.4 The Empowennent of the Victim 172 3.5 The Reconstruction of the Offender 175 3.6 Community Participation 179 3.7 Critique of the Claims of Restorative Justice 181 3.7.1 Of Community, Affectivity and Functionalism 182 3.7.2 Communities of Class 186 3.7.3 Functionalism and Class Conflict 189 3.7.4 The Class-Singular Community 190 3.7.5 The Class-Dyadic Community 193 3.7.6 Class and the Restorative Sanction 195 3.7.7 Class and the Restorative Process 198 3.7.8 Class and the Victim 203 3.7.9 Class and the Offender 206 3.8 Conclusion 209 Chapter Four: The Theory of Restorative Justice 212 4.1 Christie: Conflicts as Property 213 4.2 Critique of Christie 227 4.3 Braithwaite & Pettit: Not Just Deserts 242 4.4 Critique of Braithwaite & Pettit 254 4.5 Cragg: The Practice ofPunishment 277 4.6 Critique of Cragg 294 Vl Chapter Five: Marxism and Restorative Justice 312 5.1 Proprietary and Non-Proprietary Schools 314 5.2 The Primacy of Property 316 5.3 Morality and Property 320 5.4 Restoration and Property 323 5.5 Pashukanis: Law and Marxism 326 5.6 In Defence of Pashukanis 341 5.6.1 Essential versus Non-essential 341 5.6.2 Exchange versus Production 348 5.6.3 Capitalism and the Legal Form 359 5.6.4 Pashukanis, Anarchism and Stalinism 362 5.7 The Legal Subject and the Commodity 365 5.8 Pashukanis and the Criminal Law 366 5.9 Punishment and the Principle of Equivalence 370 5.10 Class and the Criminal Law 376 5.11 Criminal Law as Public Law 378 5.12 Pashukanis and Christie 385 5.13 Pashukanis contra Christie 395 5.14 The Political Economy of Restorative Justice 403 vii Chapter Six: Restorative Justice and Postmodernism 410 6.1 Restorative Justice as Postmodem Justice 411 6.2 The Ambit of the Investigation 412 6.3 Six Theses on Restorative Justice and Postmodemism 417 6.3.1 Thesis 1: The State 417 6.3.2 Thesis 2: History 420 6.3.3 Thesis 3: Alterity 424 6.3.4 Thesis 4: Power 428 6.3.5 Thesis 5: Subjectivity 430 6.3.6 Thesis 6: Consumerism 433 6.4 Critique of Restorative Justice as Postmodem Justice 438 6.4.1 Marxism and Postmodemism 441 6.4.2 Commodification and the Principle of Equivalence 444 6.4.3 Pashukanis, Postmodemism and Restorative Justice 449 Conclusion 454 References 468 INTRODUCTION 1 Introduction Restorative justice is easily and indisputably the most exciting and fascinating recent development in the criminological field. As a self-consciously new way of doing justice, it is no more than twenty-five years old. Yet, it has captured the imagination and won the approval of large numbers of criminal justice analysts and practitioners who see in restorative justice a practicable and promising solution to the international crisis of criminality. One discerns a collective sense of relief - and belief - that finally, after so many false starts and blind alleys, there is a real possibility that the answer to one of the most intractable problems of contemporary society has been discovered. Indeed, if the proponents of the restorative justice are to be believed, their project may hold the key to solving all the serious socio-economic problems of our time.