Restorative Justice – A Parallel System, not an Adjunct

MAP Newsletter, No 105, 22 January 2009 Jim Consedine

If the recent general election in New Zealand did one thing, it helped clarify how bereft of imagination the law and order policies of the two major parties have become. There was hardly one creative thought presented to the electorate, except for more punishment. Yet by any standard, current policies are an expensive failed disaster. Practically all the most infamous criminals who currently hog the headlines are graduates of our prison system. If our schools or hospitals failed this badly, we’d sack all the doctors and teachers. Imprisoning more and more people at an additional cost of up to $1 billion over the next three years is a cop out. It simply panders to ignorance and our basest fears. Of course, there are a small percentage of offenders who need to be kept out of circulation for the safety of the community. But do we need to create so many graduates from these ‘universities of crime?’

Restorative justice processes, which can offer so much more especially to victims of crime and their families, have yet to be fully tested in an imaginative way. The government pilot processes, while interesting, were strangled to a large degree by red tape. Only when restorative justice processes, properly resourced and funded, use trained facilitators at community level as well as through the courts and in schools will we seriously tackle anti-social behavior, crime and its causes and offer real hope to victims and offenders alike.

We could lead the world with adult justice processes as we did with juveniles if only we had the courage to tackle the issues head on. Restorative justice should be a parallel system with its own kaupapa and protocols, not an adjunct to the current retributive system. Traditional Maori processes, guaranteed under the Treaty of Waitangi, give us some historical precedents in this matter. My own Irish cultural heritage shares a similar history. It has all been done before.

Maori and the Irish

I have always been struck by the similarities between the traditional Irish social structures and Maori structure. In earlier times in Ireland, there were three levels of belonging. The most basic level was the fine (pronounced finna) which corresponds to the Maori whanau. Then there was the sept, which equates to the Maori hapu and finally there was the tuath or clann, which corresponds to iwi.

Both Maori and Ireland were essentially federal not feudal societies. Both evolved complex systems of law without having any strong form of centralized government in place. Neither evolved a system of universal law applicable everywhere, though both developed systems which were remarkably similar throughout the land.

Each society was governed by law based not primarily on retribution and punishment but on restoration and healing. In both cultures the breaches of relationship resulting from crime, be it minor or major, needed to be healed to ensure the continuation of the community and its survival. Justice had a very pragmatic dimension. It didn’t make any sense to kill, lock away or banish people from the community who might prove to be effective family members, bread winners and elders in time. Families needed all their members. Parents needed their youth. Children needed parents, present. So in both traditions, the people evolved very sophisticated and effective means of dealing with infractions of law which resulted ultimately in healing and restoration. For both races, strengthening family and community life was the focus of their law and judicial processes. It was very rare for a purely punitive sentence to be handed out to an offender, and rarer still for a death sentence imposed. Instead, accountability involved forgiveness and healing as well as restitution.

So, at a time when English law had institutionalized violence and was using flogging, torture, the rack, imprisonment, transportation to the colonies especially Australia and execution for up to 200 offences ranging from treason to pick pocketing, indigenous Irish and Maori communities on opposite sides of the world were using meetings and hui to resolve various infractions within their communities non-violently.

The Brehon Laws in Ireland had been developed over 1500 years of federation whereby there was no strong central government but rather hundreds of small communities, hierarchically structured and often with a king at the head who worked together to maintain their families and community life. Brehon Laws covered all criminal acts from murder and cattle theft to fights and trespass. Many were strictly speaking not laws at all but codes of conduct and tradition guiding peoples’ behavior. They were formed from generations of wise decisions and sayings of the elders and they helped knit into cohesive units the varying elements within each clan, and between the different clans. A brehon was a local jurist who arbitrated disputes and imposed sanctions on behalf of the community.

Brehon Law prevailed in most of Ireland (outside the Pale or wider Dublin area) up until the 17th century, when the English extended their control of the Irish through the implementation of the infamous Penal Laws, which basically banned anything Irish and anything Catholic under pain of imprisonment, banishment or death. Indigenous Irish law was effectively crushed under the heel of the colonizer.

A century later on the other side of the world Maori were fairing little better. The same English colonisers had signed the Treaty of Waitangi in 1840 which under Article 2 of the Maori version guaranteed the right of rangatiratanga over taonga or prized things, and in Article 4 ensures the protection of te ritenga Maori, that is, the basic threads of law, religion, language and other taonga that wove Maori society together. In other words, Maori were guaranteed that their system of law would be protected and allowed to develop under the terms of the Treaty. Since there were less than 2000 Pakeha and more than 150 000 Maori at the time, it made sense that Maori would want to preserve their social systems under any treaty.

Their system of law was largely restorative. The whole of Maori law is based on relationships – to the whanau, hapu, iwi and to the land and surrounding environs. Getting right relationships and correcting bad ones is the process law seeks to achieve. Traditional Maori processes of justice were usually held on the marae and involved all the relevant parties. In a hui held over several hours or longer, the offending was acknowledged, victims heard in a respectful manner, complications aired and decisions reached which had healing and restoration at their centre, not merely punishment. Shame played a significant part in that the offender was brought before his family and community to answer to the charges. Chances are the offender would be berated by ‘the aunties’ or other kaumatua present, which was often regarded as a greater form of punishment that anything else they might endure. Eventually, in terms of outcomes, consensus or kotahitanga was the aim of the hui. The aim was to restore the mana of the victim, the victim’s family and the family of the offender, and to ensure that measures were taken to restore the future social order of the community.

Maori had two specific elements not obviously present in English law – utu and muru, whereby property could be seized from the offender by the victim and his whanau. This usually involved certain rituals worked out in advance and understood by all concerned. In modern terms, these ritualistic actions might be seen as compensation or restitution for the offending, and a process whereby mana was restored.

Traditional Celtic and particularly Irish processes were similar. The philosophy of restorative justice upon which the Brehon Laws were based covered all criminal offending. Retaliation and retribution based on vengeance were not part of that philosophy. At the heart of the process was the desire to heal the breach of relationships the offending had fractured and where necessary to promote restoration by means of compensation or restitution. In the case of a crime committed by an individual, the fine and sept were liable. The brehon’s role was to give judgment on the penalties. The brehon had the traditional laws and standards to guide his judgment. Reparation was the usual method of penalty. But for particularly serious crime, a person could be expelled from the clan and from the territory, making that person an outlaw. But that was rare. Status played a big part in determining penalties, so a person of high rank always paid more than a person of lower rank. Even for murder, Irish law sought compensation rather than the death sentence.

Sanctuary played an important role and a person could seek safety from penalty and aggrieved victims for a set period to allow emotions to cool by entering a sanctuary, which often was the area outside a chieftain’s home or around an altar in a church. Brehon Law aimed to restore to wellbeing the victim and the community. There is evidence of real flexibility in the way the laws were framed so as to make sure that happened.

Modern Times

In the summer of 2004, I was invited to spend some time in both the Irish Republic and Northern Ireland and conduct seminars with various groupings on restorative justice with both nationalist and Protestant communities, including many former militants. I was somewhat surprised to find that despite the fact that restorative principles incorporated within the Brehon Laws had formed the core of the community justice system of Ireland for more than 1000 years up until the Middle Ages, the people I worked with had little knowledge of them. Their understanding of the criminal justice system was largely retributive, not unlike that of people in England. Such is the power of colonisation!

They were delighted to discover as I worked with them that there was an ancient tradition which could be tapped into which could be developed in modern form and help keep a separate identity for their country and in my view would work better in general than the retributive system inherited from Britain. They were delighted too to learn that biblical justice, properly understood, was also restorative rather than retributive. Being largely culturally either Catholic or Protestant, this held appeal for many who could see the obvious flaws of the imported retributive system.

Interestingly, while there was little recognition of restorative justice in the Irish Republic, community groups of various shapes and forms in Northern Ireland had developed a form of community justice which owed more to restorative principles than to retributive justice. In many of the ‘hardest’ communities, both Protestant and Catholic, policing and community justice issues were largely taken care of by the local community itself. While in some instances this had led to an unofficial and sometimes primitive form of ‘street justice’, in many more communities a proper community justice process based on restorative principles was followed, prison was avoided and restitution paid as it seemed to be the most ‘just’ thing to do.

Conclusion

New Zealand is at a crossroads as regards its criminal justice processes. Despite the fact that we already imprison at a rate second only to the US in OECD countries and have developed a largely punitive culture fuelled by the corporate media and politicians among others, National campaigned for tougher law and order policies at the recent Election. Having gained power with the help of ACT whose ‘three strikes’ campaign slogan appealed to the very basest fears of people and would cost several billion dollars to implement, National appears to want to continue to appease its punitive constituency, despite the costs and the further damage that higher rates of imprisonment will wreck upon future generations.

It is crazy thinking, lacking moral fibre and showing only cowardice in the face of the reality that prisons produce more hardened and skilled criminals. The best way to attack crime would be the development of restorative justice processes as a parallel alternative system, not an adjunct to the current one. This will require moral and political courage. But in so doing, real incentives to change would be provided for offenders who would be held much more accountable on a face-to-face basis. Victims too would have a more respected place in the criminal justice processes and, as overseas evidence clearly shows, crime would be substantially reduced.

Jim Consedine is the founding national co-ordinator of the Restorative Justice Network, New Zealand.

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