Weisberg on Restorative Justice: The Dangers of “Community”

I’ve been reading some more of Robert Weisberg’s scholarship in anticipation of his visit.  I enjoyed his thoughtful, if ultimately somewhat equivocal, reflections on restorative justice at 2003 Utah L. Rev. 343.  In a sense, his comments here pick up where his critique of Dan Kahan leaves off (see this post).  He is concerned that Kahan’s proposals to build and enforce community norms through the criminal-justice system may, in practice, become a vehicle for the sort of harsh populism that has so dominated our politics of crime and punishment.  Similarly, his critique of restorative justice focuses on the sloppy and potentially dangerous ways that RJ proponents invoke the idea of “community” as a basis for criminal-justice reform.

Those who have spent some time reading the RJ literature will immediately recognize the centrality of community to the RJ rhetoric.  The term carries many positive connotations, and is often used by RJ proponents to suggest a fundamentally different level of social organization than the “state” or other politically defined groupings. 

 

“Community” does have a sense of organic connectedness.  The image is of a group of people whose relationships are marked by shared interests and values, consensual decisionmaking, and mutual care and support.

The image of the state, by contrast, is more of an external organization that imposes its will on smaller, more organic groupings.  The state is the sphere of politics, in which different social groups compete with one another, and in which some groups are inevitably subjected to domination by others.  These power dynamics may seem unavoidably to contaminate law and the functioning of the legal institutions that are underwritten by the state.  Viewed this way, legal responses to crime are unlikely to address the authentic needs of the community in which the crime occurred.

RJ advocates argue that crime creates harm at the community level, and that the community accordingly ought to be part of the response to crime, perhaps largely or even fully displacing the role of the state.  The community’s response, it is expected, will generally be more constructive than the state’s, oriented to healing relationships rather than simply exercising power over the offender.

In response, Weisberg cautions that throwing around the term “community” tends to paper over important areas of dissensus and division.  We may identify social groups based on certain shared characteristics (e.g., all of the members live within a particular geographic area), but such shared characteristics do not mean that a group is genuinely marked by a commonality of interests or a deep commitment to mutual support.  A “community” does not necessarily exist, and probably cannot exist, in some prepolitical Eden that is immune from power competition and in-group domination of out-groups.

To transfer the authority over crime from the state to the community, then, does not necessarily replace brute coercion with healing.  Indeed, we should be wary of efforts to abandon the legal model, which includes ideals of individual rights and institutional arrangements that are able to blunt some of the populist impulses that may be smuggled into “community-based” criminal-justice reforms.  Weisberg alludes, for instance, to the racism that seems to stand behind some invocations of “community” outside the RJ context.

Yet, Weisberg does not seem unsympathetic to the RJ movement, or even to the notion of community-based reform, so long as the dangers are fully appreciated:

Ironically, there may be no escape from community in working out restorative justice schemes.  To say it is a confused set of concepts and performative tropes is not to suggest the feasibility or even desirability of eradicating the vocabulary of “community” from our discourse.  Rather, the danger is that we will be used by, rather than learn to use, this vocabulary, and will therefore fail to nurture the growth of strong restorative justice projects because our entrancement will overcome our common sense and reason.  (374)

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