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Created: July 26, 2003
Latest Update: July 26, 2003
jeannecurran@habermas.org
takata@uwp.edu

Restorative Justice and the Aesthetics of Answerability

Site Copyright: Jeanne Curran and Susan R. Takata and Individual Authors, July 2003.
"Fair use" encouraged.

This lecture is based on the announcement by the Home Office on July 26, 2003, that the United Kingdom is officially adopting a program of restorative justice. Restorative Justice Implemented in the United Kingdom.

Restorative justice seeks to go beyond enforcement and punishment to understand the imbalance and lack of trust that criminal and/or deviant behavior engenders in our neighborhoods and communities. I have perhaps been most impressed by Convict Criminology, in which ex-convicts talk with us about their experiences. Most of them suggest that jail was of some benefit to them. That assumes that they had in fact committed the crime for which they were incarcerated. As we have so sadly had to acknowledge with the respect to the death penalty, we can be, and often are, wrong, George W. Bush's assurances for Texas notwithstanding.

But those same ex-felons and their wardens agree that up to 50% of those incarcerated should not be. Listening to a convict tell his story, and speak of how jail set him straight, one cannot help but be impressed by the his ongoing story that he was kept there far longer than necesssary. What do I mean by necessary? I mean that once we got his attention, and that's probably the biggest chunk of what was needed, provided him a chance to relearn the behaviors that got him in trouble, then jail serves only as punishment, and delays the chance to begin a new life with a "new skin" that will add effectively to his community.

Punishment is a whole philosophical issue unto itself, as is forgiveness. But the focus of restorative justice is restoring the community to health and trust, so that the damage done by crime is minimized, and community members are able to help each other return to a peaceful and satisfactory co-existence.

I have many friends who work with restorative justice. Many work with and amongst indigenous Americans. I have no problem with their sincerity and the effectiveness of their work. The only concern I have is a deep theoretical concern for peace and social justice. I believe that in order to return the community to wholeness and health the community, as well as the deviant, must be self-reflective.

What do I really mean by self-reflective in terms of restorative justice? We have a tendency to make the unstated assumption that we "know" what went "wrong," who did "wrong, and it is possible to atone for that "wrong" and restore the community to wholeness. That entire process assumes a "knowingness." And, as Jonathan Lear reminds us, we cannot "know" very much with any certainty. Some things we do because they seem to be the result of what is happening to us. But somethings we just do, pure reaction to goodness knows what, and then we go back and try to make that unconscious response "rational." Once we have classified the act as rational, then we can reshape the reasons that led to the act as stimuli that will lead to other, less disruptive reactions in the future. But what if like the Wolf Man from Freud, the act wasn't rational to begin with. We are trapped in the over-rationalizing of our own actions and utterances.

My concern is that in the circles we make to talk and understand one another, and to come to a new sense of community and trust, that we all examine our unstated assumptions, and that we recognize that some of our actions are rational, but that many are not. That doesn't mean that an action that isn't rational may not be harmful, and may not need to be changed. But it might mean that there is little need for blaming and labelling, and more need for illocutionary understanding of how we each came to the places in which we find ourselves. We don't want the Wolf Man do go off screaming in fear of his therapist. But it helps to understand that his explanations are simply rationalizations to make sense of what was simply a non-rational response from his subconscious to start with. Much easier to retrace and reestablish trust when we realize our tendency to dramatize and rationalize.

One theoretical position that helps me understand this is that of Bahktin's aesthetic of answerability. We may consider that every act and every utterance are part of a dialogic interaction with others, AND that the act or the utterance is awnserable by the Other. As we speak and the Other answers we enter into an interaction that may be described as an aesthetic process in which we are both affected, changed, and the result of which is our once-current interrelationship. Seen as an aesthetic process, we can see that we can performatively shape who we are through our interactions, and that we have some measure of aesthetic control over that result. To the extent that we are free within our social system to shape our interpersonal relationships through this aesthetic process of answerability, we are free to shape our community with such an aesthetic process representing the aggregate of the interpersonal relationships thus formed.

There is a danger to this aesthetic process. For me, this danger comes in the form of monologic authority that has the power of sytem or circle to make utterances that are unanswerable, because of differences in status and in power. The violation of the answerability process means that the powerful authority or institution may enforce its utterances and/or acts, leaving the individual with no opportunity to answer. The aesthetic of the interrelationship that develops in that situation will not reflect the aesthetic process of the answerable utterance, and will ultimately overcome trust.

I've made several intellectual leaps here that I have to go back and fill in. But when you give monologic authority to the enforcing power or to the community as the enforcing power, yout tend to give it as monologic authority. I fear that the destruction of the aesthetic process as the result of the failure to allow answerability will destroy the whole aesthetic of trust we are trying to instill.

Now, Susan, you get to play with this for a while. jeanne

Discussion Questions

1. What is the primary flaw in restorative justice that jeanne is addressing here?

   The non-answerability of the utterances or actions of the enforcing community or group.

2. What's the problem with non-answerability if the perpetrator did wrong?

   Precisely that we are making unstated assumptions about what the perpetrator did from all perspectives, and how the definition "wrong" was applied. Even if we are technically right in our assumption of guilt over an act and the "wrongness" of that act, we have forced the perpetrator to be a perpetrator by our definition, leaving no room for the answerability of his/her perspective.

3. Why is it a problem for the perpetrator to take a non-answerability position, since it is the community that counts more in this case?

   Because "counting more" is already a judgment, and our aim here is an aesthetic process that will reshape both victim and perpetrator, so that an entirely new aesthetic product, a new interrelationship of each with the other and each with the community can grow and develop. By shutting off the answerability, which those with the "authority of being right" often do, we shut off the very aesthetic process we are trying to foster.

   Back to indigenous peoples as offering us examples of how to do this, I think a shaman would agree with me on the aesthetics of answerabililty. I don't have to prove that to believe it. I do believe it. So now, I need to investigate it further, in a shamanic context.