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California State University, Dominguez Hills
University of Wisconsin, Parkside
Created: April 23, 2004
Latest Update: April 23, 2004
jeannecurran@habermas.org
takata@uwp.edu

Culture and Its Effect on Restorative Justice

Site Copyright: Jeanne Curran and Susan R. Takata and Individual Authors, April 2004.
"Fair use" encouraged.

This lecture is based on a New York Times article from April 23, 2004: "Hostages: Freed From Captivity in Iraq, Japanese Return to More Pain," by Norimitsu Onishi, at p. A 1. The article speaks of the trauma to young Japanese who had gone to Iraq despite their government's advisory against travel to Iraq. They went to report on what was happening in Iraq where Japan has troops, theoretically in a non-combat zone, and to further the efforts of an organization one of them started to help Iraqi street children. In the U.S. such intentions are considered honorable and good. But when these young Japanese were captured and threatened with death, their culture intervened differently.

Centuries of tradition in Japan make it socially unacceptable to defy authority. And the higher the authority, the more respected the authority, the more costly defiance. In this case the young people, ranging in age from 36 to 18, calling into question the definition of "young," had defied the Foreign Ministry, whiich has great power in Japan. So they were considered as having defied "okami."

"Beneath the surface of Japan's ultra-sophisticated cities lie the hierarchical ties that have governed this island nation for centuries and that, at moments of crises, invariably reassert themselves. The former hostages' transgression was to ignore a government advisory against traveling to Iraq. But their sin, in a vertical society that likes to think of itself as classless, was to defy what people call here 'okami,' or, literally, 'what is higher.' "

U.S. response is illustrated by what Colin Powell had to say on the incident: "Well, everybody should understand the risk they are taking by going into dangerous areas," said Secretary of State Colin L. Powell. "But if nobody was willing to take a risk, then we would never move forward. We would never move our world forward.

The Japanese cultural response has been so strong that a doctor is carrying for the young people, whose stress levels have zoomed upwards, who are being treated like criminals, and are expressing fear of going home.

" 'You got what you deserve!' read one hand-written sign at the airport where they landed. 'You are Japan's shame,' another wrote on the Web site of one of the former hostages. They had 'caused trouble' for everybody. The government, not to be outdone, announced it would bill the former hostages $6,000 for air fare."

This may seem like a minor incident. Why are we even bringing it up? Because of the growing importance of restorative justice in the criminal justice system. In small narratives like this, we can anticipate what some of the effects of our innovative practices might be. We examine culture and restorative justice in the discussion questions.

Discussion Questions

1. What is restorative justice?

   A system of dealing with deviance and crime in which the focus is not on punishment, but on helping the community, family, group to explore what happened with a view to rendering the community whole again, by undoing the harm done. Justice, in this perspective, is best preserved by de-escalating, by de-fusing anger and revenge, by making up for any harm done, and helping those involved to resume normal inter-relations. What has to be done to restore the delicate balance of justice in the community at issue will depend on the community's culture and beliefs.

2. What norm or rule was broken by the young Japanese in going to Iraq?

   They violated a government order not to travel in Iraq because of dangerous conditions. They defied a "higher authority."

3. If there is no law that says the young people couldn't go to Iraq, why are they being treated like criminals for having done so? Is the protest against harm they did to someone else?

   Complex issue of negative law. Negative law is law that tells you what you can't do. Affirmative law is law that tells you what you must do. Since getting people to do things can be a pretty difficult undertaking, American law is written mostly in the negative. You can't force someone to sing. So you don't write a law that they have to sing. You write a law that if they refuse to sing for the company that paid them to sing, then they can't sing for any other company. You can stop them from singing. But hard to make them sing.

4. Was their a negative law in Japan that said you can't go to Iraq?

   No. The Foreign Ministry issued a travel advisory, not a law.

5. So what was the young people's "crime"? What harm did they do?

   They caused trouble to Japan because officials had to stay up all night negotiating their release. Those who had to stay up working to get them released were of higher status than the young people themselves. So their crime was violating social status, "okami," defying a higher authority.

6. Now, if a community believes that it is "criminal" to defy higher authority, what does that do to answerability?

   It means that the community takes onto itself culturally the right to silence answerability. One must not express opinions that differ with those in authority.

7. If we form a circle of restorative justice in which the community brings pressure upon those who are deviant or criminal, what does this appropriation of the right to silence answerability mean?

   It probably means that the circle will not allow answerability, stilling the voices of those who are considered deviant or criminal, so that the majority will enforce the normative behavior, not necessarily a just behavior. Think about it.

   Juvenile delinquents make us crazy. If we sit down with them and impose normative behavior, using the strength of our unity to enforce that normative behavior, we have suppressed the juveniles' right to voice issues of validity. And sometimes they're right. We are not listening to them in good faith.

   My point is that in order to work effectively restorative justice must remain self-critical in guaranteeing that it does not suppress the raising of validity claims, and that it makes a good faith effort to help those of lower status in the group, juveniles or young professionals without clout in major corporations, express those claims. Otherwise we are taking an apologetic position of saying: "This is just the way it is; this is how we do it; you'll have to conform; it's the best we can do, given the circumstances." That may help control crime, but it won't provide justice, especially not if justice is fairness and non-oppression of others.