Restorative Justice: Asserted Benefits and Existing Obstacles in France
© Springer International Publishing Switzerland 2015Irene Becci and Olivier Roy (eds.)Religious Diversity in European Prisons10.1007/978-3-319-16778-7_11
11. Restorative Justice: Asserted Benefits and Existing Obstacles in France
Faculty of Protestant Theology, University of Strasbourg, Strasbourg, France
KeywordsRestorative justiceFrancePrison chaplaincyPunishment
It is well known that the concept of “Restorative Justice” stems from Mennonite communities in the USA, and was particularly developed by Howard Zehr1 (1990) in the 1970s, who was inspired both by evangelical principles and indigenous traditions, including those of native American and Maori. For the past two or three decades, it has been incorporated into the legislation of a number of Anglo-Saxon countries and, in the French-speaking world, for the past 15 years in Québec and 10 years in Belgium (where it is obviously never imposed but systematically offered). France has just recently incorporated some provisions into its new criminal law under the heading of “the individualisation of sentences and strengthening of the effectiveness of criminal sanctions”, submitted to Parliament by the Minister of Justice, Christiane Taubira, adopted on the 17th of July and enacted on the 15th of August 2014.
In France , after many terms were considered, the choice seems to have been made for the neologism “Justice restaurative”, which is a literal translation of the English term “Restorative Justice” . Quebeckers opted for the term of “Justice réparatrice” (Jaccoud 2003; Jacquot and Charpenel 2012), and a number of French researchers followed suit, while others, concerned by linguistic correctness, pleaded in favour of the expression “Justice restauratrice” (Gailly 2011). Prison chaplaincies seem to have won the day by preferring to use the term “Justice restaurative” in French. This is because, on one hand, they found that it was not a question of “repairing” something that very often cannot be repaired (human relations are not like cars for which one can simply replace parts); and, on the other hand, because a neologism produces its own semantic associations and can therefore express something other than the connotations pertaining to the French noun of “restauration”. “Restorative Justice” consists in “restoring” each person implicated in an offence, in their dignity as speaking subjects, with needs and relationships. The same applies to the French term of “infracteur”, which a neologism translated from the English “offender” that enables us to introduce a new concept, divorced from the connotations linked to the terms “author”, “delinquent”, and a fortiori “criminal”.
In order to evaluate the benefits of “Restorative Justice” and the obstacles that have yet to be overcome, we will follow three stages: Firstly, we will talk about the conceptual benefits of this notion, after which we will analyse the success of experiments already conducted in French-speaking countries, before mentioning the obstacles to its full recognition and broad implementation.
11.2 Conceptual Benefits
“Restorative Justice” (RJ) is, therefore, aimed at each person involved in an offence, that is to say the offender, victim (or the victim’s close ones if he or she is no longer alive), and the “community” (i.e. the neighbourhood, village, and immediate surroundings affected by the breach of the common rule). The application of RJ is divided into three levels:
Pre-sentence deliberations (prior to the trial) aimed at reaching an agreement between the offender and the victim on the nature of the sentence;
Post-sentence meetings, rigorously prepared and supervised, between the offender and the victim during the execution of the sentence, in order to recognise the other’s dignity as a speaking subject with needs and relationships;
Finally, the establishment of a “support and solidarity group” during the term of the sentence, with a view to reintegration and the prevention of repeated offending.
On the basis of these three practices, the conceptual benefits of RJ can be divided into seven axes that I would break down as follows:
RJ follows a holistic anthropology whereas criminal law proves to be highly reductive, considering the offence as a violation of the law and a breach against the State, at the risk of depriving the offender and the victim (for whom the stakes of the trial, with all its rituals, largely remain unfathomable) of any say, RJ considers each person as a human being with needs and relationships, as historical subjects, as beings with affections, emotions and passions, and above all as speaking and listening subjects. This latter decisive element appears in particular in the post-sentence meetings between offenders and victims. It is this pluri-dimensional anthropology2 which restores each person’s dignity, since each individual is treated as an end in themselves, and not just as a means, according to the famous Kantian definition of dignity (thus neither the offender nor the victim are instrumentalized in the defence of the law or the State).
This holistic anthropology enables the re-humanisation of the protagonists concerned by the offence: By distinguishing the offender from his or her past actions, but also the victim from his or her past traumas, RJ symbolically reintegrates the offender, but also the victim, in the human condition. Once again it is here that the post-sentence restorative meetings provide the best examples of this conversion in one’s perception of one’s self and others. This mingling of perceptions provides alternative perspectives, the founding potential of which cannot be overestimated. To state it briefly: “I’m not a monster and the other person is not an object of pulsion”, or: “I’m not an object and the other person is not a monster”. The person’s humanity is therefore revealed beyond all phantasmagoria: One’s fantasy images of the other and one’s self, which are fundamentally reductive and products of the imagination, are erased behind what precisely makes a human being a human being, that is, sensitivity, history, wounds, weaknesses and the ability to open up.
The re-humanisation of each person infuses pertinence into the very heart of justice: Because RJ, in fact, breaks the vicious circle in which the offender victimises his or herself and the victim feels guilty, particularly in the case of sexual delinquency. On the contrary, it initiates, through each party’s access to language, a virtuous circle for the de-victimisation of the offender and the deculpabilization of the victim, by placing each in his right place: The offender is identified as guilty and the victim as victim, which is a condition for overcoming these two statuses. Is RJ, therefore, a “just” justice, according to the two meanings of the ambivalent qualifying adjective “juste” in French? In French, in fact, it covers two elements, which are equity and aptness.
This establishment of aptness is based on the heuristics and hermeneutics of shame: The shame of the offender, in fact, is the remorse felt for the suffering that has been inflicted, makes it possible to shed light on the truth of the offence and to interpret it in its proper context. The re-integrative virtues of repentance should not be underestimated. Far from being a mortifying guilt that keeps them locked in the past, the shame experienced by offenders during their imprisonment or when meeting their victims, offers them a future.