Sustainable Justice and the Community

ADVANCES IN ECOPOLITICS The Transition to Sustainable Living: Advances in Ecopolitics Volume 4 Edited by Liam Leonard an...

Author: Liam Leonard | Paula Kenny

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ADVANCES IN ECOPOLITICS The Transition to Sustainable Living: Advances in Ecopolitics Volume 4 Edited by Liam Leonard and John Barry Global Ecological Politics: Advances in Ecopolitics Volume 5 Edited by Liam Leonard and John Barry

Emerald Group Publishing Limited Howard House, Wagon Lane, Bingley BD16 1WA, UK First edition 2010 Copyright r 2010 Emerald Group Publishing Limited Reprints and permission service Contact: [email protected] No part of this book may be reproduced, stored in a retrieval system, transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without either the prior written permission of the publisher or a licence permitting restricted copying issued in the UK by The Copyright Licensing Agency and in the USA by The Copyright Clearance Center. No responsibility is accepted for the accuracy of information contained in the text, illustrations or advertisements. The opinions expressed in these chapters are not necessarily those of the Editor or the publisher. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN: 978-0-85724-301-0 ISSN: 2041-806X (Series)

Emerald Group Publishing Limited, Howard House, Environmental Management System has been certified by ISOQAR to ISO 14001:2004 standards Awarded in recognition of Emerald’s production department’s adherence to quality systems and processes when preparing scholarly journals for print

ABOUT THE AUTHORS Dr. Liam Leonard is a Lecturer in Sociology, Criminology and Human Rights at the Institute of Technology, Sligo, Ireland. Dr. Leonard is the Series Editor for the Advances in Ecopolitics book series and author of a number of books on Environmental and Community Justice. He is the Founder and Editor of the Journal of Social Criminology at www.socialcriminology.webs.com Dr. Paula Kenny is a Lecturer in Sociology and Criminology and Human Rights at the Institute of Technology, Sligo, Ireland. She has completed her PhD on Restorative Justice in Ireland, and is the Book Reviews Editor for the Journal of Social Criminology.

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INTRODUCTION While there is a lower class, I am in it, and while there is a criminal element I am of it, and while there is a soul in prison, I am not free. (Eugene V. Debs, 1918)

For too long, Justice has been the preserve of the formal criminal justice system as represented by laws, the courts, the police and so on. Rather than restoring the community, the state pursuits individuals in pursuit of justice. The state does, of course, have a functional relationship with the system of justice and laws within its jurisdiction. However, we argue that Justice must be derived from the community, as part of the community’s attempts to renew and replenish itself. Communities which are responsible for justice would become restored, as individuals who had broken from the community through deviance or crime could be brought back into the group, in a process of social reintegration which rebuilt the community’s spirit, creativity and mutual commitment to each other. Communities which build justice from within will be the resilient, intelligent communities of the future. In so doing, Justice can be embedded in the structures of community, rather than being seen as part of an imposed system of laws imposed by the state. Sustainable Justice and the Community is an attempt to locate justice in a workable and sustainable way within the community. This volume, representing the sixth edition of the Advances in Ecopolitics series with Emerald Group Publishing, is a critical examination of three key concepts which need to be understood for the management of today’s flexible and fluid society, namely Sustainability, Justice and Community. Within this study, we seek to explore both through an analysis built from their original philosophical understandings, through to their contemporary usage and application, ultimately developing new understandings through a combination of the essential thematic notions underpinning both concepts. This book represents the first in a series of attempts to address the need for a new and restorative form of community-based justice, based on key 1

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SUSTAINABLE JUSTICE AND THE COMMUNITY

human qualities such as participation, imagination, creativity and respect for humans and the planet we inhabit, rather than becoming constrained by the failed systems or ideologies of the past. In order to develop this concept of Sustainable Justice and the Community, we have revisited and re-examined a series of theorists, philosophies and concepts from the pantheon of works devoted to rights, be they individual, communal or ecological. Taking as our cue the evident collapse or corruption of many major institutions such as the political, religious and economic sectors, this study represents our attempt to address the issue that a more sustainable form of justice must be found to relocate justice away from the sole possession of such failed institutions, allowing communities to embrace their communal duties in search of communal rights. Such a perspective would of course amount to a new direction for communities and the agencies of the state charged with justice. From this new direction, a greater form of justice, one which is truly sustainable, will be born. This book examines the concepts underpinning this sustainable justice in three parts. The first examines sustainable communities. The second looks at restorative justice. The third brings these two key concepts together, introducing Sustainable Justice as a key concept for the coming century. Within the chapters, an examination of the key concepts of community, justice and sustainability has been undertaken, in order to develop a coherent argument about the potential benefits of communitybased justice for the intelligent society. From the age of the Greeks and Romans, ‘justice’ has been a central tenant of the social project. Subsequent societies have had key moments and theories of justice, from the Magna Carta through to the American Declaration of Independence, French Revolution, Russian Revolution and the United Nations Declaration of Human Rights and the emergence of the concept of Sustainable Development. An understanding of Sustainable Justice can be located within the conflicting concepts of Restorative Justice as opposed to forms of punitive or retributive justice. Punitive or retributive justice seeks retribution and punishment for crimes against the individual, the community, the state, the environment or humanity. However, Restorative Justice is a holistic attempt to reconnect the individual or group who has been deemed to be the offender back into the wider community, something which may come at a cost all participants. Restorative Justice is not about satisfaction for victims or offenders, and often both victim and offender may be less than satisfied with the outcomes of its processes. However, it is this process of restoration that is important, as participating in a restorative process is the first step towards a fuller

Introduction

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restoration of the wider community which was disturbed or unsettled by particular events or crimes. In order to fully understand the concept of Justice, theorists such as Hobbes, Locke, Adam Smith, Kant, Marx, Weber, Durkheim, To¨nnies, Gramsci, Bookchin, Rawls, Nozick, Bourdieu, Foucault, Putnam, Harvey and Braithwaite will be explored in order to develop the key themes underpinning an overall understanding of Sustainable Justice as a holistic, community-based conceptual theory for the coming age. Within this wider study, two key concepts are most prevalent; Marx’s theory of ‘species being’ as a community-orientated form of social creativity and Braithwaite’s version of ‘restorative justice’ as a community-minded form of active justice will be the key notions which shape our arguments. This combination of human creativity based on contribution to the community and communal restoration of crimes, risks and harms becomes the central planks on which our understanding of Sustainable Justice is devised. Of course, our approach involves taking from existing political ideologies and theories, many of which have had positive origins which are subsequently tainted by the corruption of institutionalised power. This corruption of ideological perspectives has occurred in our view due to the dichotomy which exists once an ideologically based movement moves from the community, through civil society, and ends finally in the corrupting assimilation that occurs through institutional co-option. No movement or politics, no matter how idealistic, has been spared from this corrosive demise, be it civil rights, feminism, environmentalism or socialism on the left, or conservatism, liberalism, neo-liberalism and the ‘new right’ or neoconservatism on the right (we have completely rejected any form of fascistic or authoritarian ideology in this process of exploration). This leaves a few community-based ideologies in the deep green, anarchist and libertarian fields of knowledge for us to find a footing for the wider critique presented in this study. However, the Early Writings of Marx are also a valuable basis for the exploration of themes of creative utopias or intelligent communities once associated with the ‘new left’, which are still valuable in the wider understanding of a justice based on respect for all humanity and species rather than niche politics or chauvinistic attempts at lobbying for power on the back of a ‘cause’. For too long, those who were to benefit from the ascent to power of well-meaning ideological advocates were excluded from power. The concept of Sustainable Justice introduced here is an attempt to address that negative social outcome, locating justice within the remit of all the community, something which comes with duties as well as rights. Many

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social advocates and academics are seeking to build a new direction in socioeconomics and the political economy going beyond old and new left and right theories. In this study, we aim to supplant this direction with a viable form of justice which goes beyond the economic-based growth cycles which can never be just.

CHAPTER 1 UNDERSTANDING SUSTAINABLE JUSTICE

1.1. INTRODUCTION: CULTURES OF CRIME Writing in his seminal work Crime Control as Industry, Nils Christie (1993) outlines his vision of how western societies were facing increased unrest due to unequal wealth distribution and lack of access to properly paid work. After a sustained period of neo-liberalism and rationalisation throughout the western world, Christie’s prediction of rising crime rates in relatively wealthy states has come to pass. However, the responses to this increase in crime have been varied from nation to nation. In Christie’s case, the rise of the ‘crime control industry’ is a response that combines social control with a growth industry based on processing members of certain sections of society through a course of action that includes arrest, remand, trial and imprisonment at a time when the emphasis on rehabilitation appears to have diminished. Without doubt, there is an ideological basis for this shift away from a primary concern with rehabilitation. The shift in ideological emphasis away from left and liberal concerns with the disadvantaged background of offenders in the 1970s and 1980s has given way to a right-realist emphasis on the victim, and on punitive regimes that extract some form of retribution on those seen to trespass laws and social contexts. For many, these contexts are far too often bound up with the social background of the offender, leading to an over representation of certain social groups within prisons, as power relations between dominant and marginalised sectors of society come to be reflected in successive arrest and incarceration statistics. This point is illustrated when we apply Anthony Gidden’s (2008) adaptation of C. Wright Mill’s ‘sociological imagination’, which he relates

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through an account of the extensive social processes surrounding a cup of coffee. Reflecting on the drinking of coffee provides a sociological framework which incorporates globalisation, geo-politics, consumption, urbanisation, economics, ethnic relations and waste issues. We can apply this understanding of the wider sociological understanding to other everyday objects which take on entirely different meanings in a different social setting. The globalisation of criminal activity has provided a backdrop towards the growth of what Christie termed ‘the crime control industry’. States which were used to deal with identifiable local threats from indigenous crime gangs have had to adapt to the onset of a multinational crime sector, where those orchestrating crimes have access to global networks of cohorts, materials and customers. Some of the more audacious criminal figures have been known to make contact with the media through mobiles, as the cult of personality has come to include crime figures who attempt to embody the lifestyle depicted in television programmes such as the Soprananos or movies such as Natural Born Killers, the Godfather trilogy or Al Pacino’s role as a drug dealer in Scarface. In their book Cultural Criminology, Ferrell, Hayward and Young (2008) examine the manner in which meanings and understandings of society are subverted by images of crime emanating from cinema, television, the news media and the Internet. In their view ‘moral panics’ emerge from media hype and on screen representations of crime. This cultural packaging of crime can inform public opinion and political responses, such as ‘the War on Drugs’ or ‘Zero Tolerance’ campaigns. Without doubt, the power relations, easy money, gang associations, gun and drug culture and international dimensions of contemporary crime dominate modern society, and this phenomenon has shaped societal and political expression. In many ways, cultural representations of crime have become blurred with actual understandings of crime and society’s responses to crime. In contemporary western society, we must examine the role of drugs in a wider socio-cultural context. One question we can commence our examination by asking ‘why do so many people take drugs in society’? In addition we can ask two further questions: ‘Why are some drugs legal and others illegal’? And ‘Why do some people get arrested and imprisoned for supplying illegal drugs while some many users of illegal drugs go unpunished’? The answers to all three questions are complex and incorporate wider sociological understandings of norms and deviance, class and discrimination and power and coercion. A significant amount of critical socio-criminological research examines the extent to which incidents that reflects regional examples of ‘cultural

Understanding Sustainable Justice

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criminology’, and ‘governmentality’ exists in contemporary society. A number of incidents and community movements in the post-modern era have purported to represent the views of society’s deviant subcultures and marginalised groupings. These groups exist in both urban streetscapes and communities; all have come to represent a new culture of transgressive resistance in a state that has never completely dealt with issues of political legitimacy or extensive poverty, creating a deviant form of ‘liquid modernity’ which provides the space for such groupings to exist. The chapter demonstrates that the prevailing ideology in contemporary, post-economic downturn society have created the conditions for incidents of ‘cultural criminology’ that at times erupt into episodes of counter hegemonic governmentality. We can further argue that these groups that have emerged may represent the type of transgressive Foucaultian governmentality. Furthermore, while they are indicative of subcultures of discontent and nascent racism which belies the contented findings of various affluence and contentment surveys conducted during the years of rapid growth. In many ways, a form of counter-governmentality has developed in alienated sectors, as represented by regional attempts to challenge authorities by local groups of transgressors. Essentially, the emergence of a culture of criminality in society, and the media depictions of the same, can be said to stem from the corruption of social and political elites as much as from any agenda for resistance from its beleaguered subcultures. The concept of ‘Cultural Criminology’ outlines the understanding ‘that cultural dynamics carry within them the meaning of crime’. In many ways, the perspective provided by the Cultural Criminology of Ferrell et al. (2008) can be said to be indicative of the underlying meanalities of late modernity’s drive towards the precipice of societal organization. Essentially, the neoapocalyptic, post-globalised streetscapes which reflect the interface between high-tech consumerism and urban gang warfare have become the site of society’s anarchic lust for kicks and power in the face of an increase in a male dominated crime culture which has spawned a territorial play for power by the disaffected and disenfranchised. Furthermore, the ebbing of the tide of consumerism in the recessionary era has been highlighted by the plight of survivors of the flooded wastelands of Zygmunt Bauman’s (2000) ‘liquid modernity’, where many struggle to find a tangible life-course or to have basic rights recognised in the midst of the decline of contemporary institutions and hierarchies: The new rendition of the human-rights idea disassembles hierarchies and tears apart the imagery of upward (‘progressive’) ‘cultural evolution’. Forms of life float, meet, clash,

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SUSTAINABLE JUSTICE AND THE COMMUNITY crash y and hive off with y equal specific gravity. Steady and stolid hierarchies and evolutionary lines are replaced with interminable and endemically inconclusive battles of recognition; at the utmost, with eminently re-negotiable pecking orders. (Bauman, 2009)

This depiction of modernity as set out by Bauman presents a chaotic and somewhat nihilistic view of society. Essentially, he argues that the cultural criminology underpinning ‘liquid modernity’ can lead to episodes of local ‘counter-governmentality’ and that this process affects all aspects of modernity, across urban, suburban and rural settings. If we examine contemporary society through the lens of ‘cultural criminology’ as defined by Ferrell et al. (2008) through Foucault’s concept of governmentality’, we may better come to understand the responses of regional groups of disaffected actors who lead transgressive or deviant groups in activities of criminality which blights communities. These governmental responses are occurring in relation to the transgressive responses of those in the poorest and most alienated communities in the contemporary world as it has evolved. In an era characterised by global financial fluctuations, this view provides a filter for understanding the prevailing events which are simmering beneath the surface of an neo-liberal society that has never truly come to terms with concepts such as marginality, poverty or even an acceptance of the cultural differences underpinning poverty for its alienated poor. ‘Governmentality’ is a concept introduced by Foucault (1991) and further developed by Dean (1997, 2009), which can be applied to the various levels of governance that emanate from forms of knowledge. Stenson (2008, 2009) has further developed governmentality to include an understanding of ‘local governmentality,’ which is the governmentality derived from local knowledge, wisdom or traditions. In some circumstances, ‘local’ forms of governmentality can include a type of cultural control from which shape the bounds of community behaviour. However, we have further developed this concept to incorporate forms of ‘counter-governmentality’ or the formation of local contentious or deviant groups who challenge perceived transgressions of local rules by the authorities. ‘Cultural criminology’ and ‘governmentality’ as concepts can be combined and applied to situations where alienated groups respond to harsh social conditions and subsequent attempts at social control by the state. These responses can be seen as fragmented types of social movements, be they social, cultural or political. Brotherton (2004) has studied the responses of criminal gangs to attempts at social control in the United States. This fractious life-world of criminality is demonstrated to reflect ‘larger ideological


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impulses’ as their activities are ‘framed by society’s most powerful interests’ creating moral panics from ‘domestic demons’ (ibid., p. 263). Brotherton’s study also outlines the linkages made about criminal gangs, which locate their activities as an emerging form of domestic terrorism. He makes the point that responses to organized crime require more than a Durkheimian intervention into the anomie of youth. As traditional ideologies associated with opposing concepts of neo-liberalism and the welfare state collapse in the wake of new socio-economic realities, Brotherton’s study reminds us that a re-evaluation of existing sociocriminological understandings of criminality is also required.

1.2. CULTURAL CRIMINOLOGY: THE LAW OF THE STREETS Cities y are the dustbins into which problems produced by globalization are dumped. They are also laboratories in which the art of living with those problems (though not of resolving them) is experimented with, put to the test, and (hopefully, hopefullyy) developed. (Bauman, 2009)

Bauman’s understanding of liquid modernity includes a distinction between creative and destructively routine forms of cultural expression. While the former is positive in its innovative expressiveness, the latter is seen to engender a desire for an irregular transgression of established norms in the search for freedom from the restrictiveness of hegemonic acquiescence. Cultural criminology can be seen as a pathway towards the dissolving of the ‘conventional understandings and accepted boundaries’ surrounding criminological depictions of societal strain. This path runs through a series of disciplines which incorporate ‘urban studies, media studies y cultural and human geography, critical theory, anthropology and social movement theory’ (Ferrell et al., 2008) in a new form of reinvigorated socio-criminological criticism which sets its focus on the fallout surrounding late modernity’s ‘world in flux’. Brotherton’s understanding of an ideological malevolent form of embedded cultural criminology can be proportionally applied to Bauman’s account of the globalized, modern city, which in the case of one European state; the Republic of Ireland is its capital, Dublin. The following stories illustrate the decline of Ireland’s communities: In June 2009 a lone female member of the Irish police force An Garda Siochańa was assaulted by a gang of youths when she intervened in their public drinking session on a busy Dublin city centre street. The Garda was

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beaten, knocked to the ground and bitten on the face while a crowd gathered around the incident. None of the members of the public intervened to assist the policewoman, and one member of the gang was heard to shout ‘she deserved it, she’s a pig’. Some of the youths and members of the public were filming the incident on their mobile phones (Evening Herald: June 20, 2009). The incident was one of many which have occurred in the Republic’s capital in the years following the decline of the once buoyant ‘Celtic Tiger’ economy. In truth, the poverty of inner city Dublin (once described as having slums ‘worse than Calcutta’ in the early 1900s) had not been caused by the international monetary deals occurring in the nearby International Financial Services Centre (IFSC), whose gleaming edifices stand literally right across the busy thoroughfare where the assault on the female Garda occurred. Rather, the cause of this endemic poverty has been the neglectful policies of successive governments, which have starved the city’s neighbourhoods of investment for decades. Dublin’s inner city has a third- or even fourthgeneration heroin problem, while the majority of prisoners in the notoriously decrepit Mountjoy Prison (located a few blocks away from the IFSC) also came from these mean streets, according to Irish criminologist Paul O’Mahony’s study during the socio-economic transformations of the 1990s. While O’Mahony contends that the majority of those incarcerated during the 1990s were from the inner-city, the demographics of these neighbourhoods have altered in the intervening decade. The majority of inhabitants of inner Dublin in 2009 were born outside of Ireland, reflecting a decade where globalization brought tens of thousands of immigrants into Ireland, a pattern which is now reversing with the economic downturn. Nonetheless, these statistics reflect a failure to integrate these new arrivals into Irish society. The discourse of immigration has also been a problematic one in contemporary Ireland. The state has led the line in the creation of an image of migrants as ‘The Other’, in Edward Said’s original understanding of the term. State officials and media reports have described migrants in populist terms, with one serving state minister causing a scandal when he dismissed those concerned with underpaid Turkish construction workers in a debate about their plight. The same minister survived to implement the harshest cuts in social welfare in the Irish state’s history. The education minister of the same government was criticized for attempting to create a school exclusively for the children of African migrants; the same minister’s father was the spokesperson for the virulent pro-life lobby, which has campaign for decades to deny fundamental rights to Irish women. One report was critical of a senior Irish judge, who said Roma migrants from Romania raised their


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children to steal and were responsible for our ‘shops being robbed blind’ (Irish Times, January 2, 2010). This populist atmosphere from elements in the state has trickled also down into the street, where migrants face racist attacks and hostility. The 2006 Central Statistics Office (CSO) report on immigration demonstrates that in three local election wards around Dublin’s main thoroughfare O’Connell Street, most of the population were born outside of Ireland. The CSO figures show that the population of the North City Ward in Dublin is now 55% foreign national and nearly one-third of these people had originally come from outside the European Union (EU). Foreign nationals had accounted for 10% of the total Irish population in 2007, with over 200,000 coming from one source, Poland. By 2008, this figure came to be reduced considerably as non-attached migrants departed. Less than half of foreign nationals assigned with Social Security Numbers (PPSNs) in 2004 had been recorded as actively working in Ireland by 2008 (CSO, 2008). There have also been accusations of discrimination against the indigenous ethnic Traveller group made against the state. The United Nation’s Committee on the Elimination of Racial Discrimination 2006 report supported claims by various Traveller groups that as an ethnically separate group it suffered from discrimination (Irish Independent, January 3, 2010). A report to the Oireachtas (Parliamentary) European Affairs Committee on immigration in Ireland needs to review its anti-discrimination laws to better protect the migrant Roma community, which faces high levels of racism and discrimination in Ireland and across Europe. According to the report, the state needed train all public officials, civil servants and police to prevent further discrimination against this migrant group (Irish Times, January 2, 2010). The report estimates that up to 2,500–3,000 Roma are now living in Ireland and goes on to indicate that this group are faced with widespread discrimination: The results of an EU-wide survey have shown that only 24 per cent of Irish people would be comfortable having a Roma person as their next-door neighbour and that only 6 per cent had Roma friends or acquaintances. (ibid.)

Writing in 2001, Jeff Ferrell outlines the world of the ‘mean streets’ of post-affluence society in urban Denver in the mid-western United States with these opening lines: Something’s gone wrong. Something has shifted away, away, away from what it means to live our lives together in public, away from a sense of the city as an open, inclusive society. (Ferrell, 2001, p. 1)

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It is interesting to note that both Ferrell’s vivid account of Denver and the aforementioned story of Dublin’s crimescape come after years of rapid growth followed by the subsequent global economic crash which has come to dominate contemporary culture. These urban wastelands provide the settings for the fragmented lifestyles outlined by Bauman’s (2000) concept of a contemporary modernity where the marginalised attempt to renegotiate their uncertain existence from crisis to crisis. This post-modern landscape reflects a form of ‘hyper-pluralism’, as new cultural contests are borne from the dissenting voices of the identity-based culture wars which have come to supersede class struggle in the post-modern moment. The emergence of neo-conservative political policies has also been reflected in the response to new cultural patterns. In addition, the collapse of the globalised financial sector is but one more reminder of the ongoing demise of existing institutional orders which have separated a privileged elite (the 1% owning 40% of US wealth for instance) from a bourgeoning army of marginalised poor, addicted, undocumented or trafficked victims of a corrupt version of globalisation. Essentially, the poorest inhabitants of cities like Dublin and Denver never benefited from the growth that is reflected in the expansive urban skylines that rise around them. For example, despite the hubris surrounding the much vaunted neo-liberal successes which characterised the ‘Celtic Tiger’ boom years in Ireland, poverty levels remained endemic. In addition, the lucrative subsidies to developers in Denver outlined by Ferrell (2001, pp. 38, 39) were mirrored in Dublin and across Ireland. However, rates of homelessness and subsequent lawlessness increased in both jurisdictions at this time. In America, tent cities are emerging for the contemporary victims of foreclosures, echoing the ‘Hoovervilles’ of the 1930s. In Ireland, where up to 22% of 18- to 25-year old are unemployed, the traditional social safety valve of emigration has again become common. Ferrell, Hayward, Morrison, and Presdee (2004) further examines the ‘spatial dynamics of exclusion’ that exist in the city (pp. 155–167). By applying Papastergiadis and Rodgers’ (1996) concept of ‘parafunctional’ urban spaces to the dynamics underpinning episodes of contemporary criminology, Hayward set out to understand the reclamation of the wasteland or street by the disaffected and the disenfranchised. Culturally, a brave new world of 24-hour news media and pop culture has embraced the new culture of criminology for its entertainment value and its sensationalist aspect. The saturation of criminological cultural production has become a sideshow within Baudrillard’s post-modern simulacra, as the contradictions of subversive resistance and the corruption of authority are merged into


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what the author’s describe as a ‘cultural motion’. These criminal-cultural patterns are captured and reproduced hazer’s mobile phones, CCTV cameras, news broadcasts and on episodes of ‘crime TV’. Under this conceptualisation, the public space comes to represent no more than a postmodernist venue for territorial disputes; it was one such territorial conflict that marked the site of the attack on the young Irish policewoman in Dublin. In the culture of the disaffected, hostility and apathy to violence run side by side, as the quest for local governmentality remains a continual and fluid struggle for all involved in the contest for power in the fractured public spaces. Youth culture in Ireland is in many ways reflective of the detached, consumerism of mainstream society. Drug use, binge-drinking and the culture of joyriding ‘boy-racers’ dominate the scene both in urban and rural settings. This activity is underpinned by a rise in suicides by young people, mostly amongst males (Maclachlan & Smyth, 2005). Irish post-modernist popular culture is discussed by Balzano, Mulhall, and Moynagh (2007), with issues of post-colonialism, sexuality and community psychology being applied to existing and emerging forms of Irish identity in the era of globalization. And it is from the chaos of this fluctuating, liquid society that some positive cultural initiatives are manifesting themselves among the postaffluent social fragments, as mutually supporting support groups for youth suicide, teen pregnancies, drug and alcohol addiction and alternative sexualities emerge to fill the void left by the collapse of mainstream society. However, the depictions of young people in the Irish media are often sensationalistic and prurient. The conservative media in Ireland rarely investigate underlying issues which are contributory factors to levels of endemic poverty amongst Ireland’s most marginal sectors. Nonetheless, sensationalist headlines about welfare fraud by unmarried mothers or asylum seekers have featured heavily in media reportage. This ‘moral panic’ approach to reporting crime has in itself influenced responses to crime. In addition, sensationalist reporting of crime has fed into the politicalization of policing, as successive justice ministers have used populist ‘law and order’ approaches to tackle crime to bolster their political standing. Intrinsic correlations of this type between politics, media and crime create a distorted form of hegemony, as Irish media comes to be influenced by Anglo-American media coverage of crime, Irish political responses to crime have been shaped by a populist right-wing ideology that places no emphasis on restoration or rehabilitation. This distortion of salient issues has subsequently led to an ideological morass that frames contemporary debates about crime in Ireland.

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1.3. SUMMARY This section has outlined an understanding of cultural criminology as it exists in one European state, Ireland. The Irish case is presented as an example of the corrosive consequences of a society pursuing economic growth over all other values. This understanding of a society in flux has incorporated the existing understandings of ‘cultural criminology’ as detailed by key theorists such as Ferrell, Hayward and Young and applied to the cultural shifts that have occurred in Ireland over a period of rapid economic and social change. This form of accelerated change has occurred within the context of the wider fluctuations of a globalised world. This form of cyclical economic growth has impacted on social change and ultimately criminality in a changing Ireland. In many ways, it has been the erudite criminologist Jock Young who has best captured a coherent understanding of these developments from a sociological perspective. In his book The Vertigo of Late Modernity, Young (2007) details the manner in which everyday life has come to be ‘disembedded’ blurring the boundaries of transgression of norms and the generation of wealth or even forms of ‘society’. Young locates this disconnect within a ‘social exclusion thesis’ (2007, p. 18); his arguments are most relevant when considering the Irish case. If we examine the changes in Irish society from Young’s perspective, we can use his exclusion thesis to build verifiable findings on the cultures of criminality which have been examined in this chapter. Each aspect of the ‘social exclusion thesis’ can be applied to the contemporary urban situation by utilising Jock Young’s original concepts: i) The Binary: The division between a ‘satisfied majority’ and ‘excluded and despondent minority’ or minorities is evident in contemporary society. ii) Moral Exclusion: The decline of moral and religious institutions has led to a crisis in the area of moral leadership in a society already shaken by a decade of political corruption. Attendant social breakdown and family dysfunction from below underpins the corruption of these institutions. iii) Spatial Exclusion: Urban areas in once booming cities such as Dublin and Denver are now displaying evidence of endemic ghettoized criminality and gang culture. iv) Dysfunctional Underclass: The dependency of large sections of the population on the welfare state has been exasperated by a collapsed economy, and a bourgeoning crime culture.


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v) Work and Redemption: The collapse of social and economic institutions has left the Irish underclass alienated, while those in work have seen conditions deteriorate to such extent that an anomic workforce that once built the neo-liberal ‘casino’ economy is now experiencing a large decline in productivity. The rewards of work, such as pay or home ownership, have been reduced to such an extent by deflationary measures that ‘work’ has come to be a problematic concept. Adapted from Young (2007, p. 18. Ultimately, such social and economic changes have opened the door for an increased criminality in contemporary society. As the borders of inclusion and exclusion are increasingly blurred, the future of Irish society remains unclear, while the cultural criminology surrounding such changes becomes all the more discernable. These issues will remain as challenges for policy makers in Ireland for many years to come.

1.4. SUSTAINABLE URBAN COMMUNITIES In the wake of the type of social breakdown illustrated in the preceding section, the search for a fairer and more sustainable future now preoccupies many academics, advocates and politicians. Since the collapse of the major institutions associated with the ‘broken society’ of the previous cycle of socio-economic planning, this search has become a priority for all, regardless of prior ideological convictions. Even Britain’s Conservative party, whose former leader once declared that ‘there was no such thing as society’, has realised that ignoring social problems leads to more difficulties for all sectors of the population. In his speech ‘The Big Society’, British Prime Minister David Cameron set out his framework for this new dispensation: Big society-that’s not just two words. It is a guiding philosophy-a society where the leading force for progress is social responsibility, not state control. It includes a whole set of unifying approaches-breaking state monopolies, allowing charities, social enterprises and companies to provide public services, devolving power down to neighbourhoods, making government more accountable. (David Cameron, ‘The Big Society’ Speech, Hope University, Liverpool, March 2010)

If the state in its present form is a failed entity, then it would take more than words to convince many that the British Tories of all parties could deliver on the type socio-political innovation required to deliver a reinvigorated form of community based social justice (indeed, the speech has been criticised as paving the way for spending cuts rather than delivering devolved

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power to communities). Nonetheless, the ideas of devolving power to neighbourhoods and promoting community participation is part of the wider quest for a new political direction, and both are central to the arguments we are presenting in this book. There are many seeking new ways of dealing with social and sustainable forms of justice. In the United States, many think tanks and research groups are seeking new directions for community-based initiatives. Groups the ‘Centre for the New American Dream’ envision a society that values not just ‘more’ but more of what matters. In the move towards greater urbanisation, ‘justice’ takes on new cultural meanings as communities evolve. More of the planet’s population are moving into urban situations, so the culture of community justice must adapt to reflect that. The rights of the individual, so central to Liberal philosophy, must be revisited in the light of the challenges of the future, where community living in confined urban spaces must be seen as the setting for theories of justice. This creation of an urbanised future now requires a sustainable platform, and therefore, there is a need for a community-based and participatory form of justice, which can deliver justice to the populace in a sustainable manner. In many ways, the concept of civilisation has altered from the ethic of rural self-sufficiency into an urban form of co-dependency. Society as a concept is therefore also altered, and the modern urban society becomes an ongoing ‘mobilisation’ (Girardet, 1999, p. 11) as rights and justice needs to be extended to all citizens. Communities must therefore also be mobilised for sustainable forms of justice to exist: ‘This mobilisation has come to define human existence’ (Girardet, 1999. p. 12). Such a mobilisation for Girardet should have a specific direction, enabling communities to renew ‘civilisation’ to make society just and ‘convivial’ for all of humanity and the environment inhabited by all species. Seeking the ‘civil society’ or the vita activa or ‘good life’ (de Geus, 2009) has long been a concern of philosophers and theorists. As de Geus sees it, a sustainable form of civil society is derived from values: The basic dimensions of a sustainable lifestyle and an utopian inspired ecological ‘art of living’ are that society’s focus should be shifted from ‘having’ to ‘being’, and to find a balanced configuration of the vita activa: action, work and labour. It is also vital to find forms of hedonism which are independent of mass consumerism, to relate our material consumption to our ecological footprints in systematic ways, and to cultivate ecological virtues and moral character. (de Geus, 2009, p. 77)

The 1992 Earth Summit in Rio de Janeiro introduced the concept of ‘Sustainable Development’ as a key goal for humanity, linking social and


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environmental justice as the most significant challenges facing humanity in contemporary society. Globally, environmental justice has become a significant cause, but there is a need to also develop a community-based system of justice which locates social and environmental justice in the community hall as much as in the offices of the United Nations, both conceptually and in real terms. To revive civilisation, more imaginative forms of justice, such as restorative justice and community based policing, are required. For instance, what could be learned from indigenous South American which communities ‘act out’ communal plays to restore justice but also to restore community relations when a breakdown in social justice has occurred. According to Girardet (1999, p. 13) civilisation is the ‘the pulsing heart of conviviality y with diversity y and cultural vigour – but also sustainable in economic and environmental terms’. Moreover, there is also the need to instigate sustainable forms of justice, based on the partnership model of the ‘civil society’. By enhancing community participation in the process of politics or justice, a ‘culture of sustainability’ is created, one which is both democratic and just, based on civic duties as well as civil rights. Sustainable justice is therefore created from respect for the citizenry, their rights, cultures, customs, laws and environments. For Bourdieu, the concept of habitus is central to understanding communities. Inhabitants of different communities are shaped by their habitats with the shared experience of life in a particular setting creating social bonds, built on subsequent communal contributions, interdependence to each other and the wider society. In addition, true social ‘habitus’ is found in the community’s shared grief, their sorrow, the desire to make restitution in the community, the drive to forgive and accept forgiveness, and so on. These human impulses are all in themselves civil ‘rights’, and within each of these social functions spin the life cycles of individuals, families and communities, even civilisations. Sustainable justice should therefore underpin the sustainable community creating or recreating ‘civilisation’ in the process. Sustainability and ‘sustainable development’ should be built on respect for environment, resources and peoples of the planet, should inspire sustainable justice within the community. Sustainable justice should therefore be as integral part of the community as the formal institution of justice, which has come to define ‘society’ courts, police, prisons, local government, national government, senate, and so on sustainable justice should be based in civil society, to act as a link between the community and the institutional sector. Distinctions between ‘bottom up’ and ‘top down’ approaches should become less relevant, as new forms of balanced

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partnerships emerge between communities, civil society and the institutional sector, based on the search for natural and sustainable justice rather then the imposition of law. Moreover, the technology which has created the network society should be better utilised to reinvigorate civilisation through online participation in community forums, local decision making, planning and environmental justice debates. In this way, technology may assist with the restoration of the citizen and community as an active contribution to the sustainable society rather than the passive and sedentary consumer, creating waste and isolated from their natural environment and socio-political decision-making process. Sustainable justice would therefore also help to challenge the anomic and alienated urban society, with its inherent social breakdown, isolation and crime, by creating enhanced local governance or ‘governmentality’ (Foucault). If the modern, city has become a ‘superorganism’ Girardet (1999, p. 23), then sustainable justice can tackle the cancer of urban breakdown, the subject matter of the ‘cultural criminology’ (Ferrell et al., 2008), which can be discerned along the blighted city landscape. Therefore, a culture of sustainable justice can replace the prevalent globalised urban culture of drug crime, built on human exploitation. The city can be seen as a ‘productive enterprise, with capital and labour markets, service industries and artistic endeavour y as a symbiotic cultural system’ (Girardet, 1999, p. 23). However, this form of the ‘Intelligent Society’ requires a sustainable form of justice to underpin its accomplishment. In many ways, the hubris of the urban experiment needs to be balanced by the humility borne of contribution, and it is here where a civic sense of ‘duty’ can help perpetuate a sustainable form of justice in the community. The critical issue for a sustainable future is this: can cities ‘be sustainable, self regulating systems, both their internal functioning, as well as their relationships to the outside world’? (Girardet, 1999, p. 24). One of the key answers to this is the introduction of sustainable forms of justice within the process of planning, development and administration which accompany the growth of the city. The city ‘modifies’ the ‘pre existing assembly of life on earth’ according to Girardet (ibid.). Therefore, sustainable justice must be built into the development of the community writing the city, while helping to alleviate the over-exploitation of resources outside the city is a balanced and sustainable manner. Sustainable forms of justice on the planet may be held within the walls of a few thousand conurbations: Sometime early next century, if present trends continue, more than half of the world’s population will be classified as urban rather than rural. The twentieth century has been, then, the century of urbanization. (Harvey, 2000a, 2000b)


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Therefore, the extended city and its mobilized citizenry hold the key to patterns of justice for the future. Where development exists in urban areas, urban regeneration holds out the promise of better planned cities with a mobilised citizenry, which could better incorporate an interactive and sustainable justice model, while enhancing lifestyles, public participation and environmental justice. Where these ‘smart cities’ develop, sustainable forms of justice can be built into the social fabric, with communication technologies enhancing local civic activism, engagement and participation in reinvigorated processes of justice, politics and community planning. This ‘interactive citizen’ would replace opinion polls and public marketing with civic engagement and create a new pattern of behaviour for the ‘watchdog and whistle blower’ or turn the community watch programme into a form of civic justice, restoring the community where it has broken down, as youth programmes could prepare younger citizen for new forms of participation, breaking the anomic cycle of alienated deviance or facilitate mobilised citizens protecting their environment. Girardet sets out an understanding of urban development or urban regeneration based on ‘information feedback’ through urban intranets based on research and best practice the utilisation of Internet technologies which currently enhance social movement and environmental movement mobilisation (Leonard, 2005, 2006, 2008). In many ways, communication technologies can embrace sustainable forms of justice for communities or the environment by facilitating debates and enhancing participation, while also recording the evolution of the communal habitus which shapes our destines.

1.5. SOCIAL JUSTICE AND COMMUNITY CAPITAL To have a better understanding of sustainable forms of justice in the community, we must first understand the political economy of this social entity. Community capital is the sum of the various elements of capital available to a community as part of any sustainable form of development. Essentially, the basis of community capital includes all the requisite areas underpinning community life; human, social, environmental, economic, cultural and cultural. In addition community capital includes the indigenous resources, regional amenities and a local skills base are combined with corporate and civic forms of philanthropy and volunteerism required to make a community sustainable in its most extensive aspects. Community capital is comprised of

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the significant forms of capital outlined by the theorist Pierre Bourdieu in The Forms of Capital (1986): economic, cultural, and social. At the centre of this understanding of community capital, Bourdieu outlines a series of ‘relationships of mutual acquaintance and recognition’. In his book Cultural Reproduction and Social Reproduction, Pierre Bourdieu (1973) argues that middle-class parents endow their children with a cultural capital of various linguistic and cultural competences. Schools require these competences (whose content is controlled by the rich) for educational success, yet fail to teach them to working-class children. Thus, school assessment which looks neutral actually legitimates economic inequality, by transforming socio-cultural competences into hierarchies of attainment which appear to be the outcome of inequalities of natural ability. We can ask ourselves whether inability to access cultural capital can lead to social breakdown and anomie amongst those excluded from such resources. Therefore, community capital can be understood as the forms of economic or social capital which incorporates the wider linkages of social groups who provide due concern for the well being of their counterparts without immediate recourse to normative concerns for profit or other compensation for such actions. One significant outcome of the global economic downturn is the opportunities that have emerged for networks of ‘community capital’ to replenish flows of finance to local businesses. There have been a number of initiatives which have extended community capital in local or regional contexts over time. These enterprises have included co-operatives, credit unions and local alternative currencies. Community capital may also include those assets which can be held in common by a community for their mutual benefit. Such assets may include the provision of labour, technologies or other equipment, factory space or land banks, which could be used in commonage. While the reasons for this pooling of resources may vary, ultimately the extension of schemes which create flows of community capital are devised to have universal benefits for society. Community culture emerges from a process of socialization whereby inhabitants are indoctrinated with distinct values by social institutions including parents, schools, peers, work colleagues, religious groups, media and state apparatus. The creation of these bonds of socialization lies at the heart of community capital. For Bourdieu, the local characteristics which underpin socialized community cultures are part of that region’s ‘habitus’, or the identity borne of shared forms of local experiences and environments. Community capital is then derived from a system of mutual exchange built from what Bourdieu describes as ‘all the goods, material and symbolic,


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without distinction, that present themselves as rare and worthy of being sought after in a particular social formation’. According to Robert Putnam, author of Bowling Alone (2000), the social version of capital ‘refers to the collective value of all social networks and the inclinations that arise from these networks to do things for each other’. In his study of American community, Putnam sets out two main components of social capital: ‘bonding capital’ and ‘bridging capital’. Bonding capital refers to the value attributed to the social networks which exist within homogeneous communities while bridging capital refers to the social networks existing between socially heterogeneous groups. Relevant examples are utilised by Putnam to demonstrate the consequences of the existence or non-existence of community capital. For instance, adolescence gangs may create forms of bonding social capital with negative consequences, while sports groups such as the bowling clubs referred to in Putnam’s title may create bridging forms of social capital with positive outcomes. Bridging social capital may be beneficial for society in a number of ways; democratic deficit and social breakdown can be addressed as participatory activity is enhanced in the civic sector. Alternatively, the absence of community capital may lead to the further eroding of civil rights and the loss of public amenities, creating negative consequences for wider society and the environment. The formation of community capital is dependent on the existence of ‘a sense of community’, which is in itself a shared psychological experience of community rather than its tangible or structural frameworks. Such experiences are multifaceted and interwoven with the experiences of others, and it is within this ‘imagined community’ (Anderson, 1983) that community capital emerges in its nascent form. This sense of community engenders shared feelings of belonging which are underpinned by a mutual respect and sense of commitment. Ultimately, this sense of social cohesion can be understood through a depiction of the social relations found within a neighbourhood, where socialized forms of influence are crucial to the formation of norms and values. It is the shared values, both imagined and acted upon, which form the social cohesion (or ‘glue’), which binds communities together. Internet communities have developed the imagined community further, with the technological capital that has emerged from such innovations central to the contemporary concept of community diffusion. To¨nnies detailed the ability of social groups to exist as manifestations of personal and social ties that forge links between like minded individuals who share values and belief systems (gemeinschaft) as opposed to the impersonal, formalized, and engaging links that exist across society (gesellschaft).

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The pluralism set out by Alexis de Tocqueville in Democracy and America provides the creation of the public space required for such forms of community capital to exist. The separation of interests that might subvert democracy has become the keystone of local democracy in the United States. Community capital is formed through the tapping of reservoirs of key elements and resources which surround the community by those who comprise the community, and through the value placed on this process. This value is underpinned by the public spirited impulse which survives without recourse to pre-existing alignments or alliances, avoiding what de Tocqueville described as ‘the tyranny of the majority’. For Foucault, community capital can be understood through the nodes of ‘local governmentality’ which emerged from regional forms of power. In relation to understandings of community capital emanating from the works of classical theorists, Marx extolled a concept of collectively pooled ‘species being’ or the group-based aggregate of skills passed on within a community from the skilled exponents of communal-based crafts. Weber outlined an understanding of ‘status and association’ whereby social networks and mobility could be derived from the groups a person associated themselves with, with status being bestowed by the community for contributions rather than earnings or profit. With Durkheim, ‘organic and social solidarity networks’ became central to the development of society, as different types of social solidarity came to correlate with different types of society. Durkheim (1893) divided these into mechanical and organic solidarity in his seminal study The Division of Labour in Society. Mechanical solidarity comes from the homogeneity of individuals connected by shared location or common goals. Mechanical solidarity is an attribute of traditional societies. Organic solidarity emanates from the interdependence that arises from specialized activities in modern societies. This interdependence is therefore based on the sum of a community’s component elements as social solidarity comes to be developed in modern societies through the interaction stemming from the complexities and interdependence of the industrial age. Key indicators of sufficient degrees of community capital include the existence of levels of pluralistic activism within participatory democracy, an active civil society with associated non-governmental organizations (NGOs) and community foundation groups with access to Internet resources. Economic capital supplants community capital in the form of credit unions and co-operative movements, corporate social responsibility (CSR) movements engaged with cause marketing, and alternative financial networks.


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Cultural capital contributions to community capital incorporate ‘the engaged campus’ with enhanced opportunities for volunteerism, knowledge sharing and pooling of existing educational resources, smaller school size with literacy programmes and equal access to education for all sectors in society. Furthermore, particular elements within a region such as the availability of pedestrian access, park benches, sports facilities, woodlands and cycle lanes play a significant role in the development and retention of levels of community capital. Therefore, spatial planning for public spaces and amenities becomes a crucial part of the community capital project. Owing to the costs involved, public/private partnerships have emerged around community projects, enhancing corporate engagement with the public sector and local municipalities. Ecological capital is then provided through the establishment of sustainable practices such as recycling, community farming, co-operative markets, pooled labour, and alternative or green living practices. The corrosive results of poor urban planning and neglect have been outlined in Harvey’s book Spaces of Hope (2000b). Here, the significance of good planning practice and the development of the public space are presented as an antidote to the urban breakdown that has become characteristic of major cities such as Baltimore, according to Harvey. The development of social ecology and ecological capital is also a significant element of the concept of sustainable development. End of pipe solutions are replaced with green processes that incorporate sustainable practices into production processes from the product planning stage through to recycling of used parts, with integrated forms of management and production being utilised for the benefit of the environment and wider community. Various forms of mutual engagement create community capital that can be measured through a series of indices that quantify quality of life, happiness, health, longevity, optimism with the future, employment and wealth, civic engagement and neighbourliness. Religious participation and family interaction may also be measured as part of a community capital index. These indices can be references in relation to societal upheavals such as economic downturns, demographic shifts, ethnic diversity, spatial developments or wider events such as climate change to create better understandings of community capital reservoirs. The creations of horizontal public networks are at the core of the quest to enhance or retain levels of community capital. Public spirited concepts such as civic leadership, egalitarian volunteerism, philanthropy, social responsibility are crucial to this form of social project.

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Once sufficient levels of these civic virtues are attained, the subsequent civic engagement provides an effective bridging function between non-linear and non-affiliated networks and the wider population. This connectivity between social networks and community capital has provided a local and interpersonal response to the anomie formed from trends in globalization and accelerated change which is a characteristic of the post-modern condition. From a social psychological perspective, McMillan and Chavis (1986) set out a theory within the field of community psychology, which argues that a prevailing ‘sense of community’ is comprised of four key elements. These elements include ‘Membership’, ‘Influence’, ‘Integration and fulfillment of needs’ and a sense of ‘Shared emotional connection’. Membership includes five specific characteristics: ‘Boundaries, emotional safety, a sense of belonging and identification, personal investment, and a common symbol system.’ Influence is reciprocal; as participants need have some influence over the wider group, while equal levels of influence by the group on participants is required to maintain wider cohesion. Integration and fulfilment of needs: Once initiated into a community, participants must attain benefits or rewards for their contribution to the group. Shared emotional connection: as a vital aspect within the creation of a sense of community according to McMillan and Chavis, this shared emotional connection includes shared histories and experiences borne from participation and engagement with the group. Alternative currency movements are often conceptualised as an object of protest or a tool for constructing alternative communities, economies and societies, as contemporary alternative currency networks have attempted to construct networks using new forms of money as a tool for building a more fair and balanced economy and society through the engendering of community capital. Traditionally, community capital initiatives have included concepts such as social credit, or the paying of a dividend to equalise incomes in free societies. Advocates of alternative currencies have advocated a supply of credit and goods based on the principles of barter of goods and exchange of services since the ‘Homestead’ movement of the Great Depression (North, 2010). In contemporary society, the Local Exchange Trading System (LETS) in North America or local currencies such as ‘favours’ in the United Kingdom promoted local self-sufficiency. Greens have advocated a ‘basic Income’, which would replace welfare and allow for further earnings by recipients. One further area of community capital is witnessed in the moves to engage business with sustainable and pro-community activities. Writers such as Fritjof Capra and Gunter Pauli (1995) have outlined the significant role business plays in creating more sustainable pathways for communities and


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their environments. The active role played by businesses in developing community capital is best understood through an examination of the concept of ‘CSR’. Essentially, CSR extends the corporate sector’s remit to go beyond mere concerns with profit margins, and allows for recognition of the world beyond the business-customer relationship. As multinationals increase their presence across the globe, this move towards increased integrity in the relationship between corporations and communities has become more significant. Corporations have also moved towards contributing to communities through increased charitable philanthropy. This process of contributing to help communities to develop has been described as ‘cause marketing’. Daw (2006) describes the emergence of the cause marketing phenomenon in international business. Representing a market worth $1.4 billion, Daw outlines the manner in which cause marketing has become a sophisticated contemporary phenomenon that creates deeper links between the corporate sector, communities and the groups or foundations that enhance the lives of others. Credit unions represent one form of community capital. One key idea underpinning the credit union is that ownership remains in the hands of the group membership. In addition, credit unions extend financial services such as loans to their members at reasonable rates and a small surplus, without the emphasis on profits that characterize the mainstream banking sector. For instance, in the United States credit unions are classified as non-profits, while in Canada credit unions are free to return a profit from their enterprise. In the United Kingdom ‘mutual friendly societies’ have existed with the purpose of extending credit to poorer sectors of society, while ‘building societies’ were created to extend credit for housing to the same sector. The Credit union directors are volunteers and are democratically elected by members without an emphasis on their assets. Credit unions also provide a micro-finance service, based on the provision of financial services to lowincome clients who may not have access to mainstream banks. Corporate credit unions provide a clearinghouse service for the wider corporate sector. The co-operative movement emerged during the Industrial Revolution to facilitate the economic plight of workers exposed to the vagaries of nascent capitalism. One of the earliest exponents of the co-operative movement was Robert Owen, who developed the concept of utopian co-operative villages in Britain and the United States. The ethic of pooled labour and resources was common in agrarian societies, and the co-operative movement developed these concepts by establishing a framework for mutual co-operation in a planned community. Throughout the eighteenth and nineteenth centuries, co-operatives, intentional communities, workers’ collectives and religious

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communes were developed through the promotion of an ethic of community capital. Owen founded the rationalist co-operative in New Harmony in the Midwestern United States. The Brook Farm experiment of the 1840s was frequented by utopians, transcendentalists and intellectuals such as Hawthorne, Emerson and Thoreau, under the influence of Charles Fourier (Leonard, 2007). In Chinese culture, the concept of ‘gua¯nxi’ is used to describe the interpersonal networks which exist between two people whereby one person is able to rely on another for assistance, favours or other forms of community benevolence, regardless of pre-existing levels of social status. Gua¯nxi can also be used to describe a network of prevailing contacts that can be mobilised within the community. In addition, influence for the common good can be maintained in this way. This form of community capital can become an unspoken norm, part of the manners or etiquettes of what Elias has called ‘The Civilizing Process’. Ultimately, a key component of sustainability is derived from the communities of practice and knowledge sharing, which emerge from community discourses, with innovation and best practices evolving from the flexible duality stemming from such knowledge flows. Recent discussions of community capital have dealt with demographic diversity. Ethnic diversity is on the increase across developed nations. This form of extensive multiculturalism provides opportunities to enhance community capital with the cultural traditions borne from diverse ethnicities. Multicultural-based community capital creates opportunities for new forms of economic and development entrepreneurialism. This is the basis for Putnam’s study Better Together (2003), which explores social cohesion and civic engagement within the context of shifting demographics and increased migration. Community capital is built as different cultures merge to form new identities based on the exchange of cultural norms and values, developing a shared basis through institutions and practices such as educational pursuits and volunteerism. The imparting and learning of new languages and cultures is an important aspect in the development of community capital. Another element in the formation of community capital is ‘civic intelligence’ or the pooled expertise devoted to addressing public or civic issues by organizations, public bodies or individuals. Within the framework of the community, ‘civic intelligence’ is the understanding that there is a value in the contribution of all who make up the community in the decisions which impact upon that community. According to Jared Diamond in his study Collapse: Why Some Societies Choose to Fail or Succeed, significant levels of civic intelligence are required


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for humankind is to solve the planet’s major problems such as climate change or the energy crisis. These practices have long been the bedrock of ‘new left’ social movement mobilizations and the greater engagement of communities with politics is a positive consequence of civic intelligence based politics, all of which serves to enhance community capital. Community capital can be seen in a range of social engagements and interactions, from community development initiatives to intentional communities to credit unions, co-operatives and the social responsibility of the corporate sector. The shared experiences and values formed from community capital creates a pool of human and natural resources can be drawn upon to meet the many challenges facing neighbourhoods, societies and nations on this ever-changing planet. The wider philosophical and theoretical issues surrounding ‘sustainable justice’ will be discussed in the second section of this book.

1.6. SOCIALISATION AND JUSTICE IN THE COMMUNITY The term ‘community’ is, as we have seen, something which has been the subject of scrutiny by academics from a range of disciplines over many years. The word itself is derived from the Latin word ‘communitas’ meaning ‘coming together’. In many ways, an interdisciplinary approach to the subject of community provides the most comprehensive understanding of this complex social construct. From a historical perspective, community is derived from traditions of a tribe or group. Sociologists define a community through an analysis of groups’ shared understandings, values and norms, whereas biologists see culture in the interaction of species. Geographers adopt a spatially derived perspective, by mapping the community’s widest frontiers, while anthropologists define a community through their shared culture. Psychologists find community in shared emotional responses, and so on. Communities understand their social boundaries, and subsequently their systems of justice, through an evolving understanding of norms, and through the processes of ‘socialisation’ which shape an individual’s sense of self within a wider social context. ‘Norms’ are the normative rules that have been established as acceptable social behaviour in various circumstances. Norms can come to be understood through the processes of socialisation experienced by individuals as part of their engagement with wider society.

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The process of socialisation is shaped by various social institutions, including many elements of society such as families and schools. The agencies of socialisation where forms of social intelligence are imparted are as follows: The agencies of socialisation: Agency

Outcome

The family Schools Peers The state Religious institutions The media The workplace Wider social institutions Social networks Cultural networks

Nurturing Teaching Interacting Hegemonic influencing Indoctrination Diffusion Training Association Socialising Cultural production

Norms are reflected in the unwritten, seemingly unspoken and subconscious behaviours observed by the majority in a society. All social interaction is governed by norms; we must fulfil these expectations in our social behaviour or risk sanction from our peers. Norms shape a society’s culture and reflect the aggregate values that define right from wrong within that society. These values are encoded as a definitive moral code that shaped the patterns of acceptable behaviour and subsequent punishments for those who break that moral code. Over time, traditional norms can come to shape the religious and legal frameworks of a society. Emile Durkheim has outlined the significance of tradition and commemoration through time as an important element in the creation of moral and legal codes for a developing society. For Durkheim, there is a relationship between the marking of important dates or milestones and the establishment of norms. Rules of initiation surround the marking of social occasions including baptisms, birthdays, coming of age events, promotions and retirements and ultimately death. There are commonly understood mores of social behaviour surrounding behaviour such as shaking hands at meetings, or not speaking in libraries. Social norms create the patterns or ‘folkways’ that shape commonly accepted group behaviours. For instance, the military or police officers wear uniforms in the course of their duties. However, people in wider society also


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dress up on occasion, for instance at job interviews, weddings and for playing sports. While norms tend to be longstanding, folkways or cultural trends tend to change from generation to generation; what was once fashionable can soon be deemed old fashioned or ‘uncool’ over time. Matters that relate to cultural taste are more likely to change than norms surrounding socially accepted transgressions such as murder, which remain constant. Essentially, norms are part of our unconscious understanding of social behaviour. In addition, social ‘norms’ are also known by other descriptive terms such as: traditions, mores, folkways, shared values or customs. The transgression of these norms through unorthodox behaviour is known as ‘deviance’.

1.7. DEVIANCE AND THE COMMUNITY Deviance can be understood as conduct that does not conform to the expected behaviour of society. In many societies, those deemed to be ‘deviant’ are shunned or avoided. The extent of deviance varies from culture to culture, but often includes non-conformists, criminals, and those addicted to illegal substances. Some societies treat ethnic or religious minorities as deviants. In many cases, deviant behaviour is punished by persecution, banishment, imprisonment and even death. The maintenance of a wider social order is deemed to be an imperative in societies and is maintained by moral and legal codes. Nonetheless, understandings of deviance evolve over time, and some things that were once considered to be outside of the accepted normative codes of society may now be tolerated. Acceptance of behaviour once deemed to be deviant usually occurs after a campaign of collective action by a social movement. Some notable social movements that have agitated for changes to social norms include the US Civil Rights movement, the Women’s movement and the South African Anti-Apartheid movement. Community-based social movements mobilise to change social, political and cultural norms using protests, political campaigns and the media to identify a grievance about a group that has been identified as ‘deviant’, that wishes to gain wider public acceptance for its cause. One movement that has agitated for changes in the penal code is the campaign to end the use of the death penalty, or the practice of capital punishment for those accused of crimes such as murder. Among the arguments given by this movement are a series of moral and ethical questions about the possibility of rehabilitation for someone accused of murder, the ethics of ‘taking a life for a life’ and the

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statistical information that demonstrates that in some cases, murder rates have increased despite the use of the death penalty as a deterrent. Deviance can occur as a result of learned behaviour, through exposure to subcultures which exist on the peripheries of mainstream society. Such subcultures may emerge due to the exclusion of a minority by a majority, as a result of poverty, or through alternative lifestyle choices. Distinctive sets of norms are created by participants in subcultures, and deviant behaviour may subsequently be passed on through a process of ‘learned deviance’. This process was termed ‘Differential Association’ by Edwin Sutherland (1924). Differential association is reflected in the socialisation processes of the subculture, where deviant behaviour is passed on to new members. These members undertake the rituals of the subculture and become accepted by the deviant group, while simultaneously loosening their ties to mainstream society. Durkheim outlines his understanding of societal drift, or ‘anomie’ as the erosion of the social norms and values, causing increases in crime and deviance. Norms and values can be eroded as a result of this ‘anomic process’, leading to social breakdown. For Durkheim, the loss of social norms leads to a crisis in various levels of once commonly accepted forms of communications as social practices are changed. The upkeep of laws provided by of traditional patterns of behaviour is diminished through a rejection of mainstream values leads to increased criminal activity or deviant gang culture. Durkheim detailed the links between the purposelessness associated with anomie with increases in suicide, emphasising the view that suicide occurred as a response to social, rather than simply personal, breakdown. For Durkheim, traditional values helped prevent anomie and the drift into crime and deviance. In contemporary sociology, the creation of ‘social capital’ (Putnam, 2000) is held up as the best response to social breakdown and anomie. In the post-war era, Robert Merton revised Durkheim’s concept. Robert K. Merton, developed the concept of anomie, and called it ‘Strain Theory’. Merton argues that problems or ‘strain’ occurs when aspirations shared by all in society are not accessible to some who have unequal opportunity, thus creating social divisions and ultimately deviant behaviour. Such conditions can create pathways to criminal behaviour. The emphasis in society on individual attainment and achievement of goals creates further pressure to achieve. The consumer society reflects this, encouraging people to value the accumulation of goods. In the absence of equality of access to opportunity, some resort to illegitimate means to gain power or goods. Merton defines ‘anomie’ in this way.


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In addition, Merton outlines five aspects of societal strain which emerge from the lack of access to the opportunities necessary to succeed. The responses to this situation are varied, as people try to adapt. ‘Conformity’ is the most common response. Conformists accept both social goals and the established means of achieving them. Individuals who adapt through ‘Innovation’ pursue the invention of new routes to success. This may involve criminal activity. ‘Ritualism’ involves abandoning goals and expecting the current standard of life afforded to you. ‘Retreatism’ involves giving up goals by adapting a non-achieving lifestyle. This may involve alcoholism or illegal drug use and ‘dropping out’ of mainstream society. ‘Rebellion’ is reflected in the outbreak of protests or revolutions. Social movement activism and cultural innovation may involve large scale social rebellion. Borrowing a term sociologically introduced by Durkheim (1893/1984), Merton adopts the anomie concept as part of his effort to suggest that biological explanations of deviant behaviour are inadequate to explain social reality and that, instead, structural conditions should be considered as inducing deviation from prescribed patterns of conduct. The most precise, if not always consistently used, definition of anomie provided by Merton refers to ‘‘a literal demoralization, i.e., a de-institutionalisation, of the means’’ that is the consequence of dissociation between cultural goals and institutional norms. (Merton, 1968, p. 190)

Anomie has often been believed to refer to a general imbalance between cultural goals and the legitimate ways to achieve those goals (Deflem, 1989). That is clearly not the case, for Merton’s concept of anomie refers to ‘‘a specific imbalance where cultural goals are overemphasized at the expense of institutionalised means’’ (Orru`, 1987, p. 122). Merton (1968) refers to the types of adjustment to anomic conditions as ‘‘modes of individual adaptation,’’ the differential distribution of which manifests the pressures exerted by the social structure (p. 194). The most common mode of adaptation is conformity, the acceptance of both cultural goals and institutionalized means. Among the deviant alternatives is retreatism, a rejection of the goals and the means of society. Another deviant alternative is the relatively uncommon adaptation rebellion, referring to the rejection and active substitution of both the goals and the means of society. Ritualism occurs when the means to legitimately pursue the cultural goals are adhered to although the goals themselves are out of reach or abandoned. The final mode of adaptation is innovation, which refers to the acceptance of goals but the rejection of means.

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David Matza and Gresham Sykes put forward an alternative view on social control that attempted to explain why some individuals drift in and out of crime. ‘Neutralisation’ (Drift) theory outlines the underlying trend towards acceptance of laws, even by delinquents. However, in the absence of a strong moral authority, delinquents drift into crime. For Sykes and Matza, criminals may share the prevailing values of mainstream society. However, those who drift into crime learn the necessary techniques or coping mechanisms that allow them to drift in and out of criminal activity. The binds of society are thus weakened during the descent into crime, and then renegotiated when the delinquent returns to mainstream society. This allows the criminal to overcome the constraints of wider social controls. As individuals seek personal freedom from the constraints of society, they may engage in deviant behaviour, such as experimenting with illegal drugs. Peerpressure is central to the process of neutralisation and drift, as criminals come to justify their deviant behaviour. Sykes and Matza outlined the following about delinquent behaviour. i. ii. iii. iv.

Delinquents Delinquents Delinquents Delinquents

express remorse over their illegal behaviour; often respect and admire honest, law-abiding individuals; make distinctions between those the victimise and others; are also subject to the demands of conformity.

1.8. THE RESILIENT COMMUNITY Understandings of social control put forward an account of the social strategies regulating human behaviour that lead to conformity and compliance with the prevailing laws and rules of society. This regulation incorporates the agencies of socialisation such as influences family and schools. Social control is maintained through traditional beliefs and values and can be undermined by peer pressure. The absence of strong moral values may lead to criminal behaviour. Social control theorists argue that conventional behaviour and strong societal and family ties reduce the threat of deviance. One early social control theorist was E. A. Ross. Ross believed that beliefs, not laws, shape patterns of individual and ultimately collective behaviour, underpinning social control. From this process, social regulation occurs. Social control regulations can become the laws, norms and ethics of society. There are two forms of social control: Macro-social concepts examine the formal frameworks surrounding the legal system such as government,

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courts, police and prisons. Micro-social concepts focus on the immediate regulation of the individual. The response of the individual is sometimes shaped by the conditions they find themselves in. Poverty or discrimination may restrict the life opportunities of some members of society, while intergenerational drug use can reduce many social groups to what US theorist Charles Murray has contentiously described as an ‘underclass’, populated by those who have ‘fallen through the cracks’ of society. One response to the social breakdown inherent in marginalised communities may be found in the development of social and individual levels of ‘resiliency’, or the ability to withstand adversity and aspiring to participate and contribute to society. Resiliency can be built in young children by developing the child’s social participation, social understanding and sense of personal worth in various ways.

1.9. THE BENEFITS OF RESILIENCY BUILDING Issue

Outcome

Self-esteem Initiative Relationships Creativity Independence Morality Sense of place Racial-integration

Self-esteem Enhanced Initiative Improved Relationships Cultivated Creativity Developed Independence Re-affirmed Values Shaped Identity Fulfilled Tolerance Secured

Source: (Leonard & Kenny, 2009a).

We can ask the question whether participation can build resilience and reduce participation in crime? According to a 2006 study on resilience participation by Kylie G. Oliver, Philippa Collin, Jane Burns and Jonathan Nicholas entitled ‘Building resilience in young people through meaningful participation’ can be built through programmes which: Foster resilience in young people through meaningful youth participation; that is, decision-making by young people that involves meaning, control, and connectedness.

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Meaningful participation can itself enhance a young person’s sense of connectedness, belonging and valued participation, and thereby impact on mental health and well-being. Need for program goals, atmosphere and activities that seek to build resilience through meaningful youth participation. Another study that focuses on lifestyles and resiliency makes the link with forms of capital. Entitled ‘Thickening Layers of Resilience: Waves of Adversity, Layers of Resiliency: Exploring the Sustainable Livelihoods Approach’ by Bruce Glavovic, Regina Scheyvens, John Overton, the authors argue that strengthening livelihood resilience is the antidote to ‘waves of adversity’. Poor and marginalized people have ‘thin layers of resilience’ and are consequently vulnerable to adversity. The livelihood strategies they pursue are differentiated responses to disturbances, based on their access to assets and institutions that together comprise their livelihood resilience. How then might the layers of resilience be ‘thickened’? They suggest that three broad imperatives deserve more focused attention: retaining ecological resilience, building social capital and reinforcing cultural capital. The significance of social ecology in relation to social breakdown (and subsequently crime) has been explored over many years by David Harvey. In Spaces of Hope the author develops his case study on the US city of Baltimore and examines social breakdown and its effects on neighbourhoods. Harvey integrates Marxist theory with a spatial analysis to discuss social inequality. Poor designs can therefore be said to contribute to social breakdown.

1.10. SUMMARY This section has examined the patterns of socialisation (induction), deviance (breaking away) and resiliency (rebuilding from hardship) in the community. The section has established that societal frameworks exist for restoring those who have drifted away from the wider community, if efforts are made to deepen levels of resiliency for young people. This approach establishes the potential for sustainable forms of justice in the community, in addition to providing the basis for community restoration for those who drift, which enhances their own life opportunities and potential contribution as a result.

CHAPTER 2 THE THEORIES OF JUSTICE

2.1. AN INTRODUCTION TO THE THEORIES OF JUSTICE The following sections will present a brief overview of theories of justice that have underpinned the development of the institutions and administration of justice in modern Western societies. It will begin with an examination of the general political–philosophical ideas and concepts in the area of justice in the modern era. It will then examine the perspectives of punishment, which are linked to these philosophical theories. By ‘modernist era’ the authors are referring to the period from the seventeenth century to the late twentieth century. This is the period that saw the development of modernism in most areas of Western societies. In the area of religion it saw a departure from monopolistic influence of the Catholic Church to the rise of Protestantism and then of secularism. The nation-state was unified as the main political entity, and some of these nation-states along with established dynasties raise and fell, whilst others saw a shift in their national boundaries. In the realm of government, it was the time of change from absolutist to constitutional government; economically, feudalism was replaced with the development of capitalism, by the transition from an agrarian to an industrial economy. As a direct result the demographics of societies were changed as populations shifted from rural to urban environments, and the structure of families was altered as the role of males and females changed. The period also saw the development of state-led police services and penal codes and systems of punishment. It significantly saw developments in people’s understandings of the size of the world and the universe. All of these far-reaching developments awakened and stimulated much activity 35

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and debate in political, social, moral and legal philosophy, and it is at this intersection that justice can be found. According to Hudson (2007, p. 3), whilst there are various different and competing theories and concepts in the thinking and attitude from the era, they do have a distinctiveness and coherence, such that different schools of thought can be seen as variants within a tradition, as different ways of institutionalising the same values and beliefs. These various theories are presented as different ideas that represent a balance between the values of the state as a ‘traditional’ perspective, while accepting the fact that there are different ways of securing those values in society. The modernist tradition began with what came to be known as the Enlightenment, ultimately evolving into modern Liberalism. Many influential theories of justice are Liberal formulations of Enlightenment themes and values. This modernist tradition is evident from the seventeenth century in theories such as those set out in the work of John Locke on natural rights. The tradition then progresses through ideas on the grounding of principles of morality and justice put forward by Enlightenment philosophers, most notably Immanuel Kant; they are then culminated in the Utilitarian Liberalism of John Stuart Mill based on the ‘social contract’ concept. In the second half of the twentieth century, these theories were revisited and critiqued by contemporary Liberal theorists such as John Rawls (1972) and Robert Nozick (1974). Subsequently, the implications of Liberalism in their original and revised versions for law and morality have been questioned and elaborated by Dworkin (1978), Raz (1986) and others. Nonetheless, there has been no widespread shift away from social theories which hold to an understanding of functional structures, such as constitutionally limited government, equality of freedom and respect, and individualism by successive generations of Liberal thinkers. Rather the tradition has developed through writers, who on the one hand address philosophical problems raised by, or left unresolved by, previous formulations and, on the other hand, highlight different questions raised within the tradition, according to political, moral and social circumstances of different times. Irrespective of challenges that have been made to these philosophical keystones, there has always been a response from a recognisably Liberal perspective. The most radical critique of the Liberal tradition has come from ‘New Left’ concepts such as Feminism and Ecologism. The earliest phase of the Enlightenment Liberal tradition was concerned with limiting political power and the extent of political obligation. PreLiberal works produced during the early Enlightenment period by thinkers such as Hobbes and MacPherson (2002) and Locke (cited in Laslett, 1988)

The Theories of Justice

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challenged the autocratic monarchies of Europe and the doctrine of the divine right of kings. Although Hobbes and Locke differed in their ideas on the strengths of duty of subjects to obey the sovereign, Hobbes advocates absolute duty, whilst Locke argues that duty is conditional on the sovereign power in accordance with the rights of subjects. Both thinkers agree that the basis of sovereign power and the duty of obedience is in the self-interest of subjects, rather than in the divine status of the ruler. This idea is known as social contract, which is of political power arising from the agreement of individuals to relinquish some of their freedom in return for the security offered by the institution of state power, and is one of the main foundations of modernism. Over time it has been subject to many different formulations, but it has not as yet been effectively or resolutely displaced (Hudson, 2003). The next phase in the development of the Enlightenment Liberal tradition was the search for the measure of justice. Whilst Hobbes and Locke moved away from the doctrine of sovereign as the earthly representative of God, they did not advance on seeing justice and virtue as reflections of the divine will and disposition. Furthermore, they produced no new theories on the source and nature of justice. On the other hand, Kant and Mill, who formulated and continue to be the two great thinkers of post-Enlightenment Liberalism, argue that God’s will or even existence was not directly provable and that the source of value must therefore be found in human beings themselves and their observations. Kant located rightness in human capacities, whereas Mill argued that goodness lies in human desires. These two approaches, the deontological and the Utilitarian, are the main branches of modern Liberalism, and as such they are manifested and evident in the major contemporary theories of punishment. In the twentieth century, the primary concerns of Liberalism shifted once again to the political rather than the moral philosophical. This occurred with the secure establishment of constitutional government, and the most pressing issues for justice in the Liberal democracies can be associated with the distribution of material and social goods. In Western societies, challenges to Liberalism have come not from religion but from socialism and communism, which have charged that Liberalism’s attachment to property rights and to limited government have together legitimised excessive inequalities in life chances and in degrees of wealth. Understandings of Liberalism have been characterised by developing ideas, which would set principled limits to inequalities (Rawls) or would justify existing inequalities (Nozick). The political embodiment of these ideas is seen in the welfare Liberalism of Roosevelt in the United States of

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America after the depression of the late 1920s and the early 1930s, and in Western European social democracies, competing with the minimal state ideologies of Conservative libertarianism and neo-Liberalism. The other great challenge to Liberalism has been pluralism. While Liberalism was founded in the circumstances surrounding the emergence of political difference and religious pluralism, they were not as complex as the highly charged pluralisms of religion, race, ethnicity, sexuality and value systems that are recognised as part and parcel of contemporary societies. Theorists such as Locke, Mill and Rawls fall short in their arguments on pluralism. However, there is a common thread in the Liberal tradition, which connects the concepts of pluralism and justice. Although Liberals are to some extent united in their support of anti-majoritarianism, they believe that it is important to protect minorities against the tyranny of the majority, as it is to protect subjects against the tyranny of the sovereign (Hudson, 2003). The following sections will present a brief overview of theories of justice that have underpinned the development of the institutions and administration of justice in modern Western societies. It will begin with an examination of the general political–philosophical ideas and concepts in the area of justice in the modern era. It will then examine the perspectives of punishment, which are linked to these philosophical theories. By ‘modernist era’ the authors are referring to the period from the seventeenth century to the late twentieth century. This is the period that saw the development of modernism in most areas of Western societies. In relation to institutional religion, modernist thought witnessed a departure from monopolistic influence of the Catholic Church to the rise of Protestantism and then of secularism.

2.2. LOCKE’S THEORY OF KNOWLEDGE John Locke is regarded as the first ‘Whig’ theorist who had a strong influence on Enlightenment philosophers and is often credited with being the founding father of the Enlightenment. His writings concentrated on key Enlightenment themes, such as the sources and limits of human experience in the world, the wrongness of religious persecution even to eradicate a belief one firmly holds to be mistaken, and a vision of a society of citizens governed by laws founded on respect for equal freedoms, based on the ‘social contract’ (Laslett, 1988).


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Locke argues that knowledge arises from experience, and in his view experience consists of two elements, sensation and reflection. Although he was writing at a time of declining beliefs in divine authority, he was not seeking to renounce religious truth itself, but rather that truth and knowledge as immediately revealed and not subject to interpretation or indeed construction in light of human experience. Locke saw all knowledge as formed through the twin filters of experience of external events and mental self-examination: All those sublime thoughts which tower above the clouds, and reach as high as heaven itself, take their rise and footing here; in all that great extent wherein the mind wanders in those remote speculations it stirs not one foot beyond those ideas which sense reflection have offered for its contemplation. (Locke cited in Laslett, 1988)

According to Locke’s theory, some items of knowledge are not acquired through experience but are present in the mind prior to experience. Locke’s theory has its origins in the work of Plato and Augustine. He examined two kinds of knowledge claimed as ‘innate’, self-evident logical principles and moral rules. Logical principles, he argues, seem self-evident only through processes of rigorous mental analysis; moral rules, even if they seem to have universal assent, are nonetheless rooted in experience. If such principles are to be understood as universal, this must be because of some commonality of human experience (Locke, 1988). Whilst Locke has been subject to criticism for his lack of clarity, his theories were important for the development of the Liberal tradition as he directed attention to the operation of human capacities for reflection in real situations as the root of knowledge and judgement. This quality of reflective capacity remains the source of principles and values of justice throughout the Liberal tradition. The innate capacity for human reflection means that members of society are able to compare and contrast their actual experience of life in that society with the imaginary experience of life in a hypothetical society or the state of being outside of that society. Locke (1988) described the freedoms that persons would have in a pre-social state of nature as freedom to act as one wishes, freedom to dispose of one’s property unhindered, freedom to repel or exact vengeance upon those who impinged on one’s actions or property. He claimed that these primary freedoms were associated with the state of nature to be natural rights, arguing that people associate in societies in order to best protect those natural rights. Therefore, the just society is the one that secures and upholds natural rights, and its use of coercive power and infringement of liberty is justified only to the extent that it is necessary to guarantee natural rights.

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From Locke’s perspective, the legitimation of state power derives from ‘tacit consent’ in a (hypothetical) foundational social contract where members of society agree to stop short of harming the life, liberty and property of others in the exercise of their own freedom, and to hand over to the state the role of punishing infringements of the laws enacted to uphold these rights and freedoms (Hudson, 2003, p. 7). They therefore accept a measure of restriction of freedom to act in pursuit of their self-interest, including, argues Locke, a restriction in their freedom to seek retribution or to bring about further restrictions on their life, liberty or possessions. Natural rights and the freedoms and limitations they imply provide the standards of right and wrong, justice and injustice, fairness and unfairness, and precede any particular regime or tradition. It is the duty of those in power as well as those over whom power is exercised to uphold these standards. Locke’s ideal state of affairs was the civil society, the society of free men, equal under the rule of law, bound together by no common purpose but sharing a respect for each other’s rights (Gray, 1995, p. 13). It follows from Locke’s conception of natural rights and the narrow limits to legitimate power to interfere with subjects’ freedom of action that he would be opposed to any attempts to impose uniformity of belief or custom. Similar to his theory of knowledge, Locke’s thoughts on rights and tolerance are criticised for their lack of content and for his failure to theorise them properly. Furthermore, Locke did not offer an extensive explanation of why the state of nature would create the rights he specifies, rather than creating more or different rights. While his right of equal freedom under law has been incorporated into the Liberal perspective without much contention, his ideas about property rights have proved more problematic. Some of the difficulties with Locke’s ideas come from the lack of argument rather than from the propositions themselves. It has been argued that a Lockean approach to property in the tradition of Western welfare Liberalism legitimises unconscionable levels of inequality (Hudson, 2003). This objection is significant when it is compared to contemporary formulations of entitlement, theories such as that put forward by Nozick (1974). According to Nozick, natural rights allow only minimal state governance. Locke argues that property is concerned with life and liberty as well as material possessions, and it is to protect their rights in this broadly conceived property that people come together in societies. Individuals relinquish the state of nature and co-operate ‘for mutual preservation of their lives, liberty and estates, which I call by the general name, property’ (Locke cited in Laslett, 1988, p. 102).


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Laslett argues that Locke’s understanding of property appears to symbolise rights in their concrete form, or he argues ‘provide the tangible subject of individual’s powers and attitudes. It is because they can be symbolized as property, something a man can conceive of as distinguishable from himself through a part of himself, that a man’s power to execute the law of nature, can become the subject of his consent, the subject of any negotiation with his fellows’ (Laslett, 1988, p. 103). While Locke’s thoughts on property may seem to be broad and wide ranging, they subject forms of property such as land, goods and wealth to the principle of compatible and equal freedom, alongside life and liberty. Although it is not full egalitarian, it does provide some limit to equality and suggests that external property entitlements should not be subject to the challenges and standards of justice. Locke’s work introduced the majority of themes of contemporary Liberalism, equal society, the social contract, limits to government power, rights and the just society, tolerance and diversity, distribution of property, derivation of knowledge and values from experience. His theories and ideas set the scene and tone for the Liberal tradition. Similar to Locke and Hume, Immanuel Kant attached great weight to human experience as the source of knowledge and understanding, but he did not see it as the sole source. Kant was a pre-eminent thinker on the Enlightenment and argued that the Enlightenment represented a moral and intellectual coming of age: Enlightenment is man’s emergence from his incurred immaturity. Immaturity is the inability to use one’s own understanding without the guidance of another. This immaturity is self-incurred if its cause is not lack of understanding, but lack of resolution and courage to use it without the guidance of another. The motto of the Enlightenment is therefore: Sapre aude! Have courage to use your own understanding. (Kant, cited in Williams, 1999, p. 2)

Kant was not advocating that each person should make up their own thoughts on justice; what he was claiming is that moral law is law which a rational being would and must adopt for themselves. The rational endorsement by the individual is a continuing and central idea in rational theory, through to thinkers such as Rawls and beyond with Habermas and other contemporary theorists. The essential component of modernism is this idea of reflexive individualism in which each person, if not their moral creator, is their own moral authority. Kant also argued that the principles of justice are derivable from categories of reason rather than from any conditions of life in an actual society, or on a hypothetical natural state. Justice he argues is a property of

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relations between people; it concerns the exercise of will among people, and it is concerned with the possibility of freedom of the exercise of will rather than the content or aim of that exercise of will. These conditions distinguish justice from other moral ideas such as virtue, benevolence and charity. The conditions also establish justice as a form of moral rationality, as distinct from instrumental rationality, which is deployed to bring about effects desired by the agent for themself (Kant, 1996). He argues that it is in the nature of reason that it is something that is actively exercised and the outcome of this exercise is the formation of will according to Kant. Only will formed by free exercise of reason can be said to be moral, and since justice is a moral category, it must be based on the free exercise of will. Since justice is tied with the free exercise of will in relations with other people, it follows that any freedom involved must be of a ‘relational quality’ (Hudson, 2003, p. 11). Kant further contends that ‘justice is therefore the aggregate of those conditions under which the will of one person can be conjoined with the will of another in accordance with the universal law of freedom, every action is just that in itself or its maxim is such that the freedom of everyone in accordance with a universal law’ (Kant, 1996, p. 151). Freedom of will is the most important concept in Kant’s theory of justice, and he develops the idea further in his 1788 Critique of Practical Reason, where he argues that freedom of will is not something that can be proved theoretically, but that it is directed by our conception of morality and it is connected by our acceptance of moral law. The universal law, which Kant refers to, is of equal freedom for all human beings, which is the cornerstone of classical Liberalism. The law is an essential component of Kant’s theory on moral philosophy as it allows for a realisation of the two key elements of a universal law. The first of these laws holds that all persons should be treated as ends and never as means and that act in a way that you could will your acts to be generalised. The first element comes from our recognition of human freedom being made up of determining ends for oneself; the second is linked to a demand for equality and also to the logical conditions allowing moral rules. Kant’s rule of universalisability or the categorical imperative as it is known and the rule of treating people as end and never as means imply according to Hudson (2003) two categories of morality: firstly, morality is unconditional and the logic of universalisability means that there can be no exceptions. Secondly, content is based on the principle of equal respect; all people should be treated as ends, as the individual is an end in themself. All persons should be respected in their self-determination, on all occasions (Kant cited in Williams, 1999).


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Kant’s structure of morality and principles of justice show how his argument moves from the nature of moral life to pre-assumptions involved in moral ideas and practices. Equal freedom for Kant is not an outcome created by morality, or a description of a just society; rather it is a condition of possibility of justice (Kant cited in Williams, 1999). Justice in his view is a way of curing inequalities in freedom of securing freedom from domination. Therefore, it is clear from his theory that equal freedom is a key element of justice. Kant also introduced an important separation between right and good into theories of justice. This distinction he makes is based on the difference between acting justly and acting out of desire. Kant argues that there is a common tension between duty and desire. He further states that we often have a sense that we ought to do something we don’t really want to do, or shouldn’t do something we want to do. Morality therefore cannot be a simple matter of fulfilling desire, and justice must then be more than promoting what the majority desires. Acting justly argues Kant is a matter of doing right, rather than bringing about good. Kant’s importance in the Liberal tradition was significant as he put forward some of the main principles of Liberal thought, and his work was very influential on current theories of distributive and punitive justice. More recent Liberal thinkers such as Rawls have also reformulated his theories. While Kant focused on the subject at the root of morality, Bentham and Mill examined Utilitarian philosophy, as they created focus on the object of reason. For Utilitarians, morality is not found in how reason advances but rather in what the reasoning subject desires. This position did not mark a return to pre-Enlightenment thinking, but rather, highlights what people themselves value: what is worthy is that which is promoted. For Utilitarians, what people desire and seek to promote for themselves and those they care about is happiness. Right action is thus just action, which promotes happiness. If happiness is what is desired then it should be increased. The best society according to Utilitarians is one which produces the greatest happiness for the greatest number of people. Pettit (1980) describes this single standard of right and its ‘attractive simplicity’ and states that ‘the just social charter is required, not to meet obscure metaphysical constraints such as natural rights represent, but merely to ensure that more happiness is brought about by the charter than would be realised by any alternative’ (Pettit, 1980, p. 111). Jeremy Bentham laid the foundation of Utilitarianism in his text introduction to the principles of morals and legislation published in 1789. Here he introduces his theory on the human impulses to pursue pleasure and

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avoid pain as the basis of rules of conduct (Bentham, 1970). He defines the good for each individual as ensuring maximum pleasure in experiences and a minimum amount of painful experiences. This balance, he argues, creates happiness. Bentham’s theory of Utilitarianism proved to be very attractive; however, it can be criticised as being overly simplistic when it comes to certain issues which Kant and others have focused their theories on. Bentham prioritises pleasures and balances these with the pains of others. The first issue with his theory is on what pleasures form happiness and what pleasures should a just society advocate and formulate; that generally fall under the heading of justice as welfare, the satisfaction of needs or justice as self-actualisation, and the freedom to follow one’s own ends. The second issue, balancing some of the pleasures against the pain of others, is a significant concern for justice in modern societies. It raises the problem, argues Hudson (2003), of the relationship of social utility to individual rights. Bentham famously dismissed the idea of natural right as ‘nonsense on stilts’ (Bentham, 1970). On the other hand, thinkers such as John Stuart Mill do not dismiss rights so easily. In fact they are the central theme in his works On Liberty (1859) and Utilitarianism (1861). In Utilitarianism he demonstrates that rights can be derived from the principle of utility and hence that justice can be reconciled with Utilitarianism. In On Liberty, Mill makes a strong case for liberty as essential for human flourishing. He argues for freedom of thought and action as the basic conditions of well-being and happiness. Mill’s treatise On Liberty leads with his thoughts and ideas on harm. He argues that the only reason for liberty in any person may justly be curtailed to prevent harm to others. Neither advancement of the general good nor the prospect of self-harm is according to Mill sufficient grounds for the restriction of liberty. Mill suggests that the appropriate response to someone thinking or doing something, which may result in self-harm, is advice rather than coerced restraint, except in the case of harm to others (Mill, 1859). His arguments on the importance of freedom to society as well as to individuals suggest that any restriction on liberty is likely to be adverse rather than beneficial to general welfare. Mill’s theory on liberty and his thoughts on harm significantly advance those of Bentham as he brings together individual rights to freedom, and the principles of utility as maximising the general welfare are, according to Gray (1995), unsuccessful. According to Gray, the problem is that freedom can be guaranteed only if liberty and general welfare, as Mill suggests, coincide. Protection of liberty is therefore dependent on liberty being what people value most, and it being


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their highest priority. If this is not the case then according to Hudson (2003) there is strong evidence that people do not always maintain a strong and conscious commitment to freedom; then liberty is precarious. Liberty can be certain only if it has a value of a pre-existing nature. This is exactly what Utilitarians and Utilitarian thinkers want to deny. Mill returns to the problem of the relationship between justice and utility in Utilitarianism (1861), where he disputes: the pretentions of any theory which sets up an imaginary standard of justice not grounded in utility, I account the justice which is grounded on utility to be the chief part, and incomparably the most sacred and binding part, of all morality. Justice is a name for certain classes of moral rules, which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life y . (Mill cited in Westphal, 1996, p. 173)

It is evident from Mill’s writings that he was concerned with protecting individual liberty against the wishes of others as well as oppressive governments. In On Liberty, he argues that social convention is a significant source of coercion as government tyranny, with the onset of democracy; Hudson (2003) contends that he may have expected it to become the most significant form of oppression. The real difficulty with Utilitarianism in contemporary society is the relationship between liberty and individual rights. Protection of these rights is dependent on the self-interest and happiness-seeking person’s Enlightenment (Gray, 1995). These values can only be utilised as rules and institutions of societies if people really desire freedom and security rather than material goods. The protection of freedom and rights is also dependent on people being sufficiently aware to recognise that their self-interest is tied up with the interests of others. If these conditions are met, then the idea that a just society protects the happiness of the majority of people (an ideal supported by Mill and Bentham) would mean that the interests of some would be sacrificed for the majority. However, Mill offers no proof of its dependability or generality, which results in his theory of individual rights and liberties being unacceptable to most contemporary Liberals. From the point of view of justice, Utilitarianism has significant deficiencies such as the inadequacy in the specification of harm and the minimalism of rights defined. Put together, those defects result in a very small amount of harm that could greatly restrict freedom. It could also result in nothing to overcome large amounts of inequality in distribution of either goods of freedoms which would produce the greatest level of happiness, then Utilitarians would support and unequal distribution.

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As the twentieth century progressed, deontological Liberalism gave way to state activism (Gray, 1995). The Liberal idea of limited government based on individual right gave way to various forms of improved state power, which was tied to different ideas of human good. The introduction of welfare state counteracted political extremism in Western Europe and economic interventions in the United States of America. The response to economic depression and the Second World War in the 1940s and 1950s was the promise of Liberal-welfaristic state-delivered levels of power, prosperity and welfare. Utilitarianism in one form or another seemed to have triumphed, although it was not without its defenders such as Popper (1945). Deontological Liberalism appeared to represent the state in decline. However, Kantian Liberalism was revived in the 1970s through the work of John Rawls, whose formulation of justice as fairness became the key focus of contemporary Liberalism. Rawl’s theories provide a critique of Utilitarianism and put forward a plausible alternative to it. His principles of justice are derived from a form of argument similar to social contractarian thinkers of the seventeenth century. His main works such as A Theory of Justice and Justice as Fairness provide a detailed analysis of the principles of justice including their importance of application and the nature of considerations, which feed both their content and interpretation. In order to discover principles which can be considered objectively fair (e.g. not a rationalisation of particular wants), Rawls employs the device of ‘original actors’ placed behind a ‘veil of ignorance’ (Rawls, 1972, p. 15). The basic principle outlined here holds that the choice of just principles for social organisation is often made by people who do not know what actual position they are to occupy in society, nor what their particular interests and inclinations will be. They are as a result prevented from sharing their principles by reference to personal advantage and can advance only on the basis of securing, to the greatest possible degree, fairness for all including themselves. The purpose of this procedure as Rawls argues is ‘y to set up a fair procedure so that any principles agreed to will just y Somehow we must nullify the effects of specific contingencies y (tempting the original actors) to exploit social and cultural circumstances to their own advantage y the parties are situated behind a veil of ignorance. They do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations’ (Rawls, 1972, pp. 136–137). Specific deprivations of knowledge imposed by the veil of ignorance are (a) place in society, (b) class or status, (c) natural assets or abilities such as


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intelligence and strength, (d) personal conception of ‘good’, (e) personal life plan, (f) psychological inclination, (g) economic and political situation of the society, (h) level of civilisation and culture attained by the society and (i) the generation to which they belong (Rawls, 1972, p. 137). According to Rawls, there are two broad types of knowledge, which actors are deprived of: (a) knowledge of personal characteristics and (b) condition of society for which a standard of justice is to be devised. The original actors are not idealists; they are intended to act in the spirit of rational self-interest, and the nature of their expectations about unknown society then becomes important. The actors being deprived of particular knowledge cannot assess the probabilities of their own position and are therefore argued, by Rawls, to work for the optimum opportunity for attainment of the most extensive goods but also to maximise the minimum condition in which they might find themselves in the real society (Rawls, 1972). Rawls further argues that his primary principles of justice are ‘y those a person would choose for the design of a society in which his enemy is to assign him his place’ (Rawls, 1972, p. 152). His work has been subject to some criticism such as that from Wolff (1977), who argues that the structure of the veil of ignorance shielding the original actors is essentially a rhetoric device used to present the reasoning by which Rawls’s principles of justice are supported. It is the value of those principles which must be assessed rather than mechanics of what is an inherently impossible original position (Wolff, 1977). Essentially, Rawls sets out two of the principles of justice from his position of rationally self-interested actors in the original position. The first is that ‘each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all’ (Rawls, 1972, p. 302). The second is that social and economic inequalities are to be arranged so that they are both to the greatest benefit of the least advantaged consistent with just savings principle and are attached to offices and positions open to all under conditions of fair equality and opportunity. Rawls then orders these principles insofar as liberty is agreed to be the priority and therefore liberty may only be curtailed to defend liberties. The first will accordingly always have priority over the second, but the second will always come prior to ‘efficiency’, maximisation of advantage and the ‘difference’ principle, and the acceptance of inequality. According to McCougbrey and White (2002), even those least enabled will value liberty as affording the best chance for self-improvement (McCougbrey & White, 2002, p. 304).

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He furthers this argument by stating that principles of justice become operative only beyond a certain basic stage of social development. In the course of the wider development of society (as basic needs are more and more effectively met), the emphasis will shift from these needs to concerns with liberties, as this exercise becomes viable with improving material conditions (Rawls, 1972, p. 542). Prior to this when basic material needs are not being met, Rawls suggests that equality would be preferred. If liberty is preferred as a ‘total basic system’ because it affords the best protected route of maximisation of position, it would appear extremely relevant to people denied even essential needs. According to McCougbrey and White, liberty and justice appear to lose credibility if they become luxuries to be enjoyed only beyond a certain point of affluence (McCougbrey & White, 2002, pp. 304–305). Rawls’s argument of accepted inequality, which is implicit in the difference principle by the reference to the advantage of the disadvantaged, is related to the human concern for at least the generation following. This may impose limits on the use of resources by any given generation. It also implies an investment by each generation for those who will follow. While Rawls’s (1972) first principle of justice and fair opportunity moderates the impact of the principle of difference in application between people at a given time, the just savings principle limits its impact as between generations. This form of justice between generations cannot rest upon the greatest benefits of the least advantaged since earlier generations can hardly be retrospectively benefited (McCougbrey & White, 2002). Later generations may be disadvantaged or at least protected from disadvantage by the wise investments of their predecessors. Rawls’s principles of justice are of great theoretical interest but gain greater salience when they are applied in real terms. He sets out a four-stage sequence for the attainment of a just society. The stages, beginning with the first, the original position, a hypothetical construct designed to facilitate considerations of the questions arising in the creation of a just society. Rawls admits that his stages are modelled in part on constitutional developments in the United States of America. The four stages of this sequence of the principles of justice and fair opportunity are as follows: (1) Enunciation of the principles of justice from the original position. (2) Partial lifting of the veil of ignorance with regard to general circumstances of the society but not individual actors, devising of constitutional system dealing with powers of government and rights of


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citizens. The process must deal with different and opposed standpoints. Granted the priority of liberty, the outcome is assumed to be some form of constitutional democracy. (3) Having established a constitution, the next step is legislation, which should be devised in accordance with justice as well as constitutional procedures. Legislators are intended to act in light of the general interest rather than to their personal advantage. Rawls admits that judging whether or not a law is just may be difficult, especially in light of the difference principle, and that it may be easier simply to determine whether a law is not unjust. This position raises the issue of the relationship between justice and injustice. The final stage of Rawl’s sequences of principle of justice and fair opportunity holds that (4) Laws and rules by judges and administrators and their working in the actions of people in general is the point at which the veil of ignorance is fully removed (Rawls, 1972, p. 198). According to Hudson (2003), Rawl’s arguments about the principles of justice address some of the main problems of earlier theories. She argues that natural rights theory offers no guarantee against the unequal distributions and no promise of addressing the injustice of earlier distributions; Utilitarian theory does not offer adequate guarantees of individual rights. Rawl’s concept of justice combines the essential idea of Kantian approaches, that justice is a set of principles to enable the independent resolution of conflicts between the ends of self-determining persons, and the insight of Utilitarianism, which is meeting human wants rather than implementing abstract, mystical principles, is what a just society should advocate. One of the main aspects of Rawls’s theory, which has been developed further by subsequent thinkers, is its ability to deal with the difficulty of external preferences. Despite Mill’s focus on the issue of diversity, Utilitarianism fails to deal adequately with the possibility that some people’s choices will not be supported, because not enough people will vote for them. Dworkin regards Rawls’s Kantian theory as providing an advanced grounding for securing individual liberty. He was concerned with the application of the principle of equal liberty and the prior of rights over general welfare concerns in actual legal political issues such as minority rights. Dworkin supports a rights-based rather than a rule-based approach to law, arguing that rights are ‘trump cards’ held by individuals, which allow them to resist decisions made even by legitimate

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authorities, following properly constituted rules (Dworkin, 1986, p. 198). Here he is extending Rawls’s theory from the establishment of basic principles and structures to the actual functioning of institutions and their decision-making. Another advantage which Rawls’s theory provides is that his ‘difference principle’ provides a rational approach to the limitation of inequalities. According to Hudson (2003), without this principle or a similar one, we are forced to choose between Lockean entitlement theory, which legitimates all inequalities so long as they arise from lawful disposal of lawfully held assets, or rigid egalitarianism such as that all must have the same or have only what they need (Hudson, 2003, p. 22). Adapting such a Lockean approach in the community may be offensive to the sense of solidarity of that community by permitting some to go without unlimited wealth while others have access to it. Both versions of this second approach offend a sense of rightness of people at liberty to enjoy that they legitimately earn. Nozick, who advocates a Lockean minimal state with minimal state intervention, opposes Rawls’s difference principle as a guide to measuring and remedying past injustices or bestowing new property entitlements (Nozick, 1974). Contemporary Liberals have put forward improvements and developments on Rawls’s theory and have pointed to some deficiencies. Dworkin argues that Rawls does not view the possibility of conflict between ideas of liberty and equality serious enough (Dworkin, 1986). Notwithstanding some of the difficulties and anomalies of Rawls’s theory, it is widely accepted as the most successful and authoritative recent formulation of Liberalism. Gray argues that in spite of the deficiencies, ‘it is in the development of this contractarian method that the most promising solution of Liberalism’s foundational questions is to be found’ (Gray, 1995, p. 55).

2.3. LIBERALISM AND PUNITIVENESS All forms of Liberalism support that offenders should be punished. However, due to the value Liberal thinkers place on freedom to pursue a person’s chosen ends. It follows that punishment should be limited and be for legitimate reasons. The two streams of Liberalism, which earlier sections have examined, Kantian Deontologism and Utilitarianism, are associated with two approaches to punishment, retributivism and consequentialism. Both approaches share a similar objective, which is to deter harmful or undesirable behaviour (von Hirsch, 1993).

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Punishment, according to Hudson (2003) and others, is a negative sanction for proscribed behaviour. The essential question for Hudson and the others including the authors is not what the purpose of punishment is but what is the justification for the deliberate infliction of pain or hardship and what is the proper means of pursuing the deterrence of harmful behaviour. It is on this very point where the two approaches move away from each other. Consequentialism looks forward to future preventable harms (Beccaria, 1764). Retributivism looks backwards to harm already carried out according to Kant. Consequentialism advocates that offenders need punishment to reduce the likelihood that they will offend again. Retributivists argue that they deserve punishment due to the crimes that they have already committed. Consequentialists agree that communities require the imposition of punishment to deter potential offenders and prevent future crime. Retributivists on the other hand argue that the community needs punishment to be inflicted on offenders in order to restore the balance of benefits and harms in society and repair the damage that has been done to its moral boundaries. These perspectives support that a system of punishment is necessary to dissuade potential offenders from transgressive acts and to assure potential victims that any encroachments on their well-being is taken seriously. Both approaches agree that in order to ensure a limitation of self-interest in favour of respect for each person’s liberty and property, positive sanctions in the form of benefits from such social co-operation must be complemented with negative sanctions in the form of ‘hard treatment’ for transgressions. This argument for the existence of a system of punishment is what Rawls refers to as the assurance; justification for coercion is that it provides an assurance that rules will be enforced (Rawls, 1972, p. 315).

2.4. SUMMARY This chapter has examined all versions of Liberalism, and it is clear that all thinkers value liberty and equality. Among contemporary Liberals, Nozick (1974) represents the Conservative strand and Rawls (1972) and Dworkin (1978) represent the egalitarian strand. Modern Liberalism continues to be divided into two stands, Utilitarianism with morality derived from what people value and Deontologism, which derives moral principles from the human rationality that makes choices. Liberalism also values objectivity; from a Utilitarian perspective it is between persons, from a deontological perspective it is between ideas of the good. Liberalism as a tradition has

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established the idea of rights as a practical process of liberty and a connected idea of limited government. As the tradition has developed, successive thinkers have examined how rights and freedom are established in earlier theories. The Liberal ideas on equality, freedom and security are important values in contemporary society and have added to significant advances towards freedom from oppression and tyranny. The brief overview of theories of justice which this chapter has provided demonstrates that there are some inherent tensions in existing Liberal theories of justice. These tensions cannot be resolved by rejecting current perspectives on the importance of values and ideas. The main tension that has been demonstrated here is the tension between utility and rights. Liberals have considered many questions and have made significant progress, but there are new challenges presenting themselves with changes and development of societies in the modern era. Issues around rights, utility, difference and identity, universalism and community-derived particularity are key for Liberal theories of justice. Some of these themes will be examined in further details in later chapters. The chapter provides a framework for understanding the key theories of Functionalism, social control, crime and deviance, which surround the issue of restorative justice. The chapter sets out to define key themes such as crime, deviance and delinquency. This is achieved by applying a sociological understanding and perspective to existing criminological inquiry. The next section examines the perspective of Durkheim, Foucault and Merton on crime. It then examines the Chicago School’s contextualisation of crime and delinquency moving on through Matza. The chapter then goes on to examine governmentality through Foucault and Dean. Furthermore, the chapter analyses contemporary sociological and criminological understandings of delinquency, deviance and juvenile justice. It also examines the civilising process and anomie through Merton and Elias. It concludes with an outline of the significance of the functionalist socialisation in the context of youth crime and justice.

2.5. DURKHIEM, FOUCAULT AND JUSTICE This section will outline the key theoretical framework which underpins this thesis, that of Functionalism. As a theory, Functionalism emerged from Durkheim’s sociological positivism, which sought to identify and explain the social facts that come to define the structures of society. For Durkheim, society’s attempt to build cohesion and solidarity during periods of


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transformation was based on the members of that society’s ability to explain and apply understandings of social functions that in turn produce social order and control. In relation to crime and deviance, the importance of Functionalism can be seen at two levels. For Durkheim (1964), crime and deviance are everyday phenomena that in turn can be seen as ‘social facts’. This functionality stems from the collective response of society to criminal and deviant acts. Any subsequent collective rejection of deviant behaviour in turn creates the norms, mores and laws by which society is governed. Durkheim sees elements within the response to crime from the wider society as functional because these responses create a sense of community and they allow for the rituals of punishment and restitution. Therefore, a functionalist perspective of crime understands that crime and deviance allow for the creation of rules, consensus, conformity and restraint. These functional elements come to define the values inherent in that particular society. Secondly, Durkheim establishes an understanding of anomie in society. For Durkheim, anomie indicates the breakdown of the rules and norms of society. His understanding of anomie or anomic society was presented through his study of suicide. His understanding of the functionalist of anomie in society in turn influenced Robert Merton in his own studies on dysfunctionality (McLaughlin & Muncie, 2005). Evidence of the functionalist perspective in restorative justice practices can be seen in the work of Durkheim, who recognised that crime and criminal behaviour are Universal, normal and functional. He saw crime as a normal occurrence and believed that it is impossible to have a society totally devoid of crime: ‘it is a factor in public health and integral part of all societies, crime, is, then, necessary’ (Durkheim, 1964, p. 46). Durkheim believes that the presence of the criminal allows the rest of society to draw together and reaffirm their values. Therefore, through opposition to criminal behaviour, the social group or society is strengthened. Durkheim regards the criminal as someone who provides the community with an opportunity to reassert standards, which he or she had broken or opposed. His pioneering study of the production of order and cohesion in modern industrial society had noted that, as societies become more advanced and complex, punishments become less severe (Durkheim, 1964). He cited imprisonment replacing death and mutilation as the sanction for most crimes. Durkheim argues that repressive forms of law, such as criminal law, tend to diminish, with conformity being secured more and more by restorative law, which is law concerned with complaints between individuals rather than crimes against the state or wider society.

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Hudson (2003) contends that the prisons which were built in the nineteenth century in the major industrial cities were designed to reform as well as to incarcerate. By combining elements of work and contemplation, the modern prison was built on the model of a monastery. One of the most famous prisons designs at the time was that of Jeremy Bentham, the ‘panopticon’, which allowed the prison guard positioned in a central watch tower to observe each and every cell without the prisoner necessarily being able to know exactly if they were being observed or not. Foucault in Discipline and Punish (1977) describes the utilisation of the ‘panopticon’ in great detail and also gives an insight into the workings of the so-called modern prison with examples of the prisoner’s timetable, which is practically identical to that of a monk or nun. While the individual cells allowed for reflection and penance, they also served as a measure of punishment along with the work ethic within the prison. However, the panopticon was never built to Bentham’s exact specifications for prisons. Victorian prisons such as Strangeways and Pentonville give a clear idea of the strategy envisaged by Bentham. Foucault in Discipline and Punish sees discipline as the fundamental principle of modern punishments. He opens the work by contrasting a public torture and execution in 1757, with a timetable and rules for a ‘house for the reform of young prisoners’. Eighty years later the first punishment is aimed primarily at demonstrating the absolute power of a sovereign over his subjects; the second demonstrates a new kind of governance, which utilises sovereign power, new social science and techniques of observation and regulation to produce the docile, productive body needed by capitalist industrialism. Foucault’s analysis of punishment is part of a wider analysis of power in modern society. For him, discipline is both the object and mechanism of punishment and is first and foremost a technology of power (Foucault, 1977). Shearing and Stenning (2003) in their article ‘From the Panopticon to Disney World’ examine the development of discipline through the use of public and private examples of non-carceral disciplinary social control. This they argue represents an important indication of what the social control apparatus of society is actually getting up to. The authors examine the structures and procedures of discipline and control that are embedded and dispersed through micro-relations in modern society. Shearing and Stenning (2003) argue that we as active members of society rarely query these forms of control as we are trained whether it is by moral or instrumental language to be disciplined and maintain social order. Similarly, Foucault (1977) defines discipline as a type of power comprising a whole set of instruments, techniques, procedures, levels of


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application and targets which may be identified with an institution or an apparatus. The panopticon epitomises the embedded nature of Foucault’s theory of discipline as it is a mechanism which ‘automises and disindividualises power’. Power has its principle not so much in a person as in a certain concerted distribution of bodies, surfaces, lights, gazes and an arrangement whose internal mechanisms produce the relation in which the individuals are caught up (1977, p. 210). Therefore, it does not matter who exercises power; any individual at random can operate a machine. Shearing and Stenning (2003) employ a series of example to show how relevant Foucault’s theory is in modern society. The ‘Disney World’ example is characterised as an exemplar of instrumental discipline as it displays an embedded nature of discipline, which is suitable as a means of preventive control as surveillance in the park becomes part of the very relations to be controlled. There is no definite presence of security men (such as the example given in the article); everything fits in with the environment. However, if the norms of control are violated, morality is called into play as a consequence (Shearing & Stenning, 2003). Discipline because of its embedded character varies according to the context in which it is applied. It is for this reason, argues Foucault (1977), that when discipline is applied in the case of carceral punishment, its distinctive element is that of individualised soul training or the ‘docile body’. Shearing and Stenning (2003) use Foucault’s theory regarding discipline and punishment to show the development and evolution of discipline. They state that what makes private control different from traditional forms of control is not just its disciplinary character which shares with carceral control but the challenge it offers to the moral foundation of the order maintenance process. The focus of discipline, based primarily on surveillance in the article shifted from the culpable employee or individual to the categories of people who create the opportunity for disorder. The examples Shearing and Stenning (2003) use of private control display a clear rejection of traditional moral conceptions of order and control process. Executives reject the idea of moral reform as a basis for control. Order is seen as the most ‘conductive way to achieving fundamental community objectives’; therefore, order is controlled by whatever maximises profit.

2.6. CRIME AND DEVIANCE IN THE COMMUNITY Merton suggests that criminal and rule-breaking behaviour results from ‘differential access to the success goals of society by legitimate means’

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(Merton, 1938, p. 216). By this he is referring to societies where a strong emphasis is placed on certain goals but where the means to attaining them are unavailable to most of its members, the result Merton believes is anomie, a situation where the rules and standards governing behaviour have lost their influence and are liable to be ignored and where shared norms or rules no longer determine and direct behaviour. According to Merton (1938), a situation of ‘anomie’ exists where people strive for goals of material success but do not possess the opportunities to reach them by legitimate means. Merton’s theory of criminal behaviour can also be called a ‘strain theory’. According to Merton, this is a ‘working class’ phenomenon. Merton believes that young people from working class backgrounds share the same cultural goals and values of the middle class, but they do not have the opportunity and means to achieve these goals and hence are motivated to lead a life of crime. Both Merton (1994) and Merry (1995) in their studies discuss resistance in the form of social structures, law and culture. Merton’s (1994) theory explores the nature of the relationship between social structures and the individual, whereas Merry (1995) uses data, which she collected to examine a range of forms or resistance and the impact on cultural meaning as well as political mobilisation by legal institutions. Both authors argue that actions, which seem to be individual, emerge from distinctive cultural understandings embedded in particular social worlds. In addition, Merry’s (1995) research highlights through reference to particular cases how powerless groups reconstruct the social identities that define their lives. Merton furthers this belief by using culturally defined goals, purposes and interests. He argues that these goals are ‘more or less integrated and involve varying degrees of prestige and sentiment’ (Merton, 1994). The social structure in his belief performs the second stage by defining, regulating and controlling acceptable modes of achieving such goals. However, Merton (1994) adds that the attainment of cultural goals is limited by institutional norms. The cultural goals of the cases, which Merry (1995) refers, were limited in some form by the legal institutions, which upheld the norms of the institution. Merry (1995) further argues that cultural understandings inform all actions including those that are labelled resistance. She states that to speak of isolated acts of resistance carried out by individuals denies the social world that constructs the individual and their ‘sphere of action’. Merton (1994) acknowledges that there is no group in society where there is an absence of regulatory codes of governing conduct. However, these groups do vary in the way in which


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institutional norms are integrated with the goals, which are part of the culture make-up. Merton further argues that emotional convictions may have an important role in governing the conduct of such groups. He contends that certain aspects of the social structure may generate resistance and anti-social or deviant behaviour as a result of differential emphases on goals and regulations. Merton also uses the example of a poker place to provide context for his theory. He describes the uneasiness experienced by the players shows an awareness of the institutional rules of the game in order to evade them, but the emotional supports of these rules are ‘largely vitiated by cultural exaggeration of the success goal’. It is generally accepted in society that crime is any act, which breaks criminal law. In addition to breaking criminal law, a crime can be followed by criminal proceedings including a court appearance and punishment in the form of a prison sentence. The phrase ‘can be followed by indicates’ that not all crime does actually result in arrest and prosecution. Some of the reasons for this are, firstly, not all crimes committed are reported and, secondly, the police are not always aware of the occurrence of criminal activity. Criminal law is not fixed and static; it varies over time and from region to region. ‘Crime is a relative concept which can only be defined in relation to particular criminal laws which are effective at particular times and in particular societies’ (Marsh, 1991, p. 1). Therefore, actions which are defined as criminal may vary in different cultural settings, in different societies and over different periods of time. For example, the consumption of alcohol is legal and a socially accepted practice in most countries, yet in certain Muslim countries, it is illegal and may result in severe punishments. The definition of crime as an act which breaks the criminal law of a particular society is always not affected by variation in what is seen as constituting crime in different societies. Definitions of crime are based on criminal laws, which are made by particular governments and enforced by established criminal procedures. Crime therefore has to been seen as a social phenomenon which is subject to variation depending on the type of society and government at particular times, including their criminal laws and practices. Deviance is a term which is used to describe persons who deviate, digress and stray from normal behaviour. In sociology, deviance is applied to situations where the behaviour is disapproved of and subject to some form of punishment. Deviance is thus used to describe behaviour that is outside the rules of society, and these rules can be legal rules or social and moral rules, rules about the conventional way to dress or to speak to other people

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(Marsh, 1991). Deviant behaviour is also behaviour that can result in some form of punishment, and this punishment can either be formal, legal punishment or take the form of social and moral disapproval. Deviance, according to Marsh, is behaviour which does not follow the expectations or norms of the majority in society, and it leads to hostile and critical reaction from the majority. Delinquents can be defined as persons under some specified age that commit acts which constitute crime if carried out by adults. The term delinquency covers a wide variety of violations of social and legal norms, from behaviour that is merely a nuisance to criminal acts such as theft and larceny. In criminology the term juvenile delinquent is typically used to indicate the high level of offences committed by young males between the ages of 12 and 20. The typical crimes of younger males are larceny and breaking and entering, while violent crimes are more common in the age groups of 17 and over. Most sociological theories of juvenile delinquency attempt to explain crimes such as larceny and breaking and entering in terms of the organisation of urban gangs, delinquent subcultures and the limitations on the opportunities for working class males and deprived social groups. The Chicago School had been analytically to the fore in studies of criminology by putting forward routine activities theory and control theory, both of which describe convergence in space in society. The Chicago School defined juvenile delinquency in terms of the social structures of local neighbourhoods and the role of peer groups in the socialisation of adult generations. David Matza in his book Delinquency and Drift (1964) argues that delinquency did not emerge as a result of strongly determined forces but rather through a ‘gentle weakening of the moral ties of society’ which allowed some young people to drift into delinquency. Matza (1964) further argues that delinquents often ‘neutralise’ legal and moral norms by defining them as non-applicable, irrelevant or unimportant to their being. He states that once a person feels indifferent towards the law, he or she may commit unlawful acts without feeling any strong sense of guilt or shame. Matza believes that a delinquent who neutralises his or her behaviour towards legal and moral norms may be said to drift into a subculture of delinquency, which makes them subject to committing criminal acts (Matza, 1964). In relation to the factors that relate to juvenile crime, research has shown that no one single factor influences delinquency but rather a number of factors that work together. Every individual young person is different, their situations are different and as a result some factors will be more influential


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than others depending on the individual. Nonetheless, poor funding for community resources and poor planning have been the major contributing factors towards rising crime rates in urban areas. Delinquents can be defined as ‘persons under some specified age that commit acts, which constitute crime if carried out by adults’ (Gibbons, 1981). Contemporary programs of delinquency control can be traced back to the child savers of the nineteenth century who helped to establish special judicial and correctional facilities such as reformatories for the management, processing and labelling of troublesome youth (Platt, 1969). The term delinquency covers a wide variety of violations of social and legal norms; from behaviour that is merely a nuisance to criminal acts such as theft and larceny (see Hendrick, 2006; Goldson, 1997a, 1997b, 1997c; Hagall & Newburn, 1994). In criminology, the term ‘juvenile delinquent’ is typically used to indicate the high level of offences committed by young males in their teens who have drifted beyond the community’s influence. However, Platt (1969, citing Bloch, 1958) argues that the ‘delinquency problem’ is linked to more specific factors such as youth–parent conflict, changes in the structure of modern families and the lack of sustained primary relationships, the lure of the peer group, the increased professionalism of the police and a growing acceptance of what he calls middle class ideals of normality. Under-resourced communities have suffered most from crime, and in many cases young people have been let down by the state and agencies meant to protect them. In worst case scenarios, the state and its agencies have exploited the young in poor areas for political or professional gain, with a plethora of academic researchers, policing initatives and political agendas being unleashed on unsuspecting communities as part of failed New Right agendas.

2.7. THE ANOMIC SOCIETY Significant theoretical interest in the nature and origins of delinquency was fuelled by Albert Cohen (1955), who suggests that young people may become involved in delinquent behaviour through a process of reactions, where norms are taken from what he calls larger subcultures and turned upside down within a delinquent subculture. Cohen (1955) recognised that by middle class standards, a great deal of delinquent behaviour is negative, malicious, non-utilitarian, versatile and free from adult restraint. Merton on the other hand explored how social structures exert pressure on youth to engage in nonconforming, non-regulatory behaviour. Merton

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(1965) contends that delinquency can be viewed as a symptom of strain (anomie) caused by a gap between culturally prescribed expectations of economic success and socially structured aspirations of achieving this success in a fair and legitimate process. Similarly, Parsons (1965) suggests that children tend to suffer from the initiating processes of their peers: The fact that the major agents for initiating processes of change lie in other sectors or society, above all, in large-scale organization, in the developments of science and technology, in the higher ranges of culture y This would suggest that the adult agencies on which the youth most depends tend to some extent to be ‘out of tune’ with what he senses to be the most advanced development of the time. He senses that he is put in an unfair dilemma by having to be so subject to their control. (Parsons, 1965, pp. 171–172)

However, Matza (1964) argues that delinquency did not emerge as a result of strongly determined forces but rather through a ‘gentle weakening of the moral ties of society’ which caused a further drift by young people into delinquency. Delinquents often ‘neutralise’ legal and moral norms by defining them as non-applicable, irrelevant or unimportant to their being. Once a person feels indifferent towards the law, he or she may commit unlawful acts without feeling any strong sense of guilt or shame. Matza (1964) further contends that a delinquent who neutralises his or her behaviour towards legal and moral norms may be said to drift into a subculture of delinquency, which makes them subject to committing criminal acts. Whilst sociologists such as Merton (1956), Cohen (1955), Parsons (1965), Matza (1964) and Platt (1969) have all contributed to the understanding and the social context of delinquency, there is still not enough discussion about the stilted social processes which define persons as delinquent. It is clear that young people in marginalised areas are labelled as delinquent due to class discrimination. A young person that steals a car radio is labelled a criminal, while a politician that embezzles hundreds of thousands from the public purse is a ‘rogue’, or a ‘white collar’ criminal. This understanding effectively implies a ‘victimless’ crime. However, the victims of white-collar crime and public corruption are ultimately the citizens who have to carry the burden of higher taxes or inadequate funding for marginal areas that in turn produces further criminality. Becker (2003) observes that delinquency and deviance are not inherent in human behaviour but rather are ascribed labels, which are attached to individuals and/or groups in particular social settings.


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Social groups create deviance by making rules whose infraction constitutes deviance, and by applying those rules to particular people and labelling them as outsiders. From this point of view, deviance is not a quality of the act the person commits, but rather a consequence of the application of rules and sanctions to ‘an offender’. The deviant is one to whom that label has successfully been applied; deviant behaviour is behaviour that people so label. (p. 243)

Hendrick (2002) argues that juvenile delinquency in common with crime can be understood only if the meaning of the term is considered within a broad socio-political context. The argument he is making is that youth crime and youth justice should be approached historically in relation to social, political, economic and personal change; cultural, social and political order; the influence of professional and administrative class agendas; party political programmes for the content and management of governance; and finally age and generational relations.

2.8. PASTORALISM AND COMMUNITY JUSTICE The manner in which the state has established power over societies through the ages has been influenced by the religious sector, from the Ancien Re´gime of feudal times through to the advent of Liberalism and neo-Liberalism. The existence of a ‘Divine Order’ with a Benevolent God and ruling elite at the top was a characteristic of the feudal state. Liberalism’s incorporation of certain religious values was reflected in Weber’s ‘Protestant Work Ethic’, while the concept of meritocracy, which underpinned modern neo-Liberal democracy, has a pastoral concern with just rewards at its core. While secularism emerged as a challenge to the links between the state and religion, the state was so infused with religiosity and hierarchical values that secularism was never a complete project. In addition, once the frameworks of governance through pastoral values came to be established under the original form of Liberalism, the relationship between the state and the poor came to be understood through its pastoral terms of reference; charity, virtue, hard work and chastity were the essence of Victorian ideology. The significance of Marx’s empowering concept of ‘species being’ as the embodiment of community-based resilience based on the shared praxis of craft as opposed to the pursuit of personal aggrandisement was not yet realised in the Victorian Age. Essentially, we can understand the emergence of pastoral power as an element of the traditional Conservative understanding of the ‘Divine Order’, with God and the monarchy on the top and the ever-suffering poor at the

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bottom. This Conservative pastoral perspective leaves little room for those at the bottom to move upward, as the social mobility of neo-Liberal meritocracy provides a space for. In the truest understanding of Victorian pastoralism, the poor are suffering for their inadequacies and their sins, and the pastoral mindset is to provide a degree of respite from this suffering rather than to provide the means to end it or to allow for an improvement in the life chances of the poorest sectors of the population. Instead, the care and welfare of the poor afford those with merit to improve their own lives through the rewards of providing charity for those who cannot provide for themselves. According to Dean, this concept provides us with an understanding of the ‘paradox of contemporary Liberal welfare states’ (Dean, 1999, p. 75) as ‘charity, philanthropy and voluntary activity’ challenge the concept of universal provision, which is held at the core of the welfare state. This division shifts between the idea of welfare as a right and the somewhat more benign understanding of welfare as the meritous shepherd tending to their obedient and compliant flock, who must display both gratitude and an impulse towards a humble poverty. This Foucauldian ‘shepherd-flock game’ is a far cry from the context of a citizen’s rights and obligations, and indicates the tensions between ‘the notions of the citizen, and the living individual who is the target of pastoral power, a being who is both obedient and needful’ (Dean, 1999, p. 76). Therefore, pastoralism can be seen to be an exercise in extending power over those in need of welfare by maintaining and reinforcing the dependency and disenfranchisement of the poor, rather than provision of rights for the citizenry. Under this pastoral model, the state takes on the role of benefactor to those in need, rather than acting as a facilitator for citizen’s rights. The recent neo-Liberal and neo-Conservative assault on the welfare state, which combines religious fundamentalism with a desire to ‘roll back the state’, can be seen as an example of the politics of the ‘New Right’ which emerged as a neo-Liberal critique of the concept of ‘cradle to grave’ welfare state provision. However, the Left’s reliance on the welfare state as a means of maintaining power can also be seen as an aspect of pastoral power. Under these two competing agendas, a paternalistic form of pastoralism as a controlled and limited form of welfare has become embedded within the political system that contemporary politics can be understood through an examination of the positions taken for or against the welfare state by modern political parties. Again, the recognition of the potential of the creative impulse of humanity as extolled by Marx’s concept of ‘species


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being’ (Marx, 1996) is denied, to be replaced by a form of pastoral welfarism which ‘proposed solidarity between rich and poor as a potent analogue of the relation between God and sinner, and penitents giving alms for venial sins’ (Dean, 1999, p. 80). This extent of religious or pastoral influence exercised on the evolution of political power over the centuries is also problematic due to the traditional religious reductionism which maintained authority while marginalising large sectors of society such as women, children and the poor from the structures of power which churches developed from their pastoral agendas. In many ways, the development of modern welfarism has underpinned the marginalisation of these groups in the guise of maintaining welfare provision for those on the margins of society. This reinforcement of marginalisation and exclusion is characteristic of the contemporary approach to welfare, while ideological debates about the nature of provision rarely include agendas of empowerment, which would address this exclusion. Dean sets out Foucault’s perspective on the issue of the welfare state by dividing the wider populace into the following two categories: i) Shepherd–Flock: ‘the living being’ with individual needs which must be ‘integrated within complex forms of social solidarity’. ii) City–Citizenry: ‘the individual as citizen’ with ‘freedoms and rights within the legal and political structure of the political community’ on an equal basis with all other citizens (Dean, 1999, p. 82). In many ways, these distinctions create the foundation for what was once the central ideological debate in Western democracies: the view that the public constituted a citizenry with rights which were then reflected in the provisions of the welfare state as held by the Left as opposed to the Right’s perspective that markets were sacrosanct and that welfarism could unbalance the moral and political order of society. This distinction was blurred by the rise of neo-Liberal and ‘New Right’ thinking and the subsequent emergence of ‘Third Way’ politics, which revised traditional understandings of welfarism by introducing public/private partnerships into the equation. By introducing the corporate sector into the welfare debate, contemporary politics has established a further category to Foucault’s Shepherd–Citizen equation, as a form of corporate welfarism has emerged. This corporate approach further marginalises non-economic actors and creates a multi-tiered society. Moreover, this multi-tiered society begets further layers of bureaucracy as a Weberian rationalisation process emerges from the cycles of governance.

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One area of rationalised governance, which Dean describes as impacting on the ‘pastorate’, is policing. As bureaucratic rationalisation creates a ‘reason of state’ (Dean, 1999, p. 86), this governmental rationale manifests itself through political expediency. Reason of state is invoked and attributed to issues of state security when normal laws or rights are suspended in the event of political crisis. Thus, when policing strategies are called into question, it is sometimes defended or excused by reason of state security. Therefore, reason of state and strength of state (security) are augmented by a layer of governance, which in contemporary society is represented by the police. However, the origins of policing are found in the twin projects of keeping the peace and the protection of private property – both of which are central to the preservation of law and order within the state. This concern with state control of the activities of its citizenry is an element of multilayered and multi-agency governance. Policing plays a role in the maintenance of good governance within the state, something which can be understood by the following quotes: The object of police is to keep a community thriving, so that its subjects may prosper, and to prevent anything hindering the common good. (Dean, 1999, p. 90) At first police ordinances dealt primarily with ‘sumptuary’ problems of the blurring of distinctions between the estates, such as the wearing of extravagant clothing y and the behaviour of servants and journeymen towards their masters. (Knemeyer, 1980, p. 174)

As municipalities and sovereign city states emerged, so too did the elements of local governance which dealt with the mechanisms of an emergent legal system with its inherent policing infrastructure. This devolution of power from the central ruling elite of the state through to the police represents a process of civilisation as understood by Elias; however, this process is also a form of governmentality, and its devolved nature lends itself to legitimised regional forms of control. The following section will examine some of the key thinkers in sociology, Merton and Elias in relation to the structures and functions which underpin conduct throughout society.

2.9. ELIAS AND THE CIVILISING PROCESS Elias’s theory of the civilising process is important for the study of social control as he puts forward valuable explanations of society’s level of tolerance towards criminal behaviour. The two concepts, which are prevalent for criminology, are what Elias calls ‘development’ and the


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‘immanent dynamics of figurations’. The term figuration as employed by Elias refers to a web of interdependent human beings who like all other aspects of known reality figurations are inherently processual (Dunning, 1992). What Elias means by ‘immanent dynamics’ is that the dynamics of a social figuration are embedded in its structure and furthermore in the makeup and actions of the people who comprise it. Dunning (1992) states that human beings always live together and that their patterns of interdependency as well as the ways in which their actions intertwine as they attempt to secure their ‘shared and conflicting ends’ are the structure of figuration that they form. He contends that struggles with and among such groups for the control over such examples as the economy, the state, goods and services, and production are all crucial connections for Elias’s concepts of the ‘immanent dynamics of figurations’ and ‘development’. These struggles are largely influenced by developmental factors such as the length and shape of the chains of interdependency within a particular society and with other societies, and the balance between the pressures of society in order for security, control and stability. The central observation which Elias makes through his theory of the civilising process is that Western societies since the Middle Ages have experienced a growth in the refinement of manners and social constraints. The refinement of manners is self-explanatory, but by social constraints, Elias is referring to the increase in the amount of social pressure on people to exercise a more even selfcontrol over their feelings in the field of social relations. This has important implications for the study of social control and restorative justice, as it can provide a valuable insight into the habitus of victims and offenders explain why they may behave or react in a particular manner at a conference/caution. This section will discuss Elias’s and Dunning’s contention that restoration emerges as part of a ‘civilising process’. Elias presents two key concepts, which are important in order to understand his theory of the ‘civilising process’. The two concepts are what he calls ‘development’ and the ‘immanent dynamics of figurations’. The term figuration as employed by Elias refers to a web of interdependent human beings who like all other aspects of known reality figurations are inherently processual (Dunning, 1992). Elias views life itself as a process, and it is human beings who form figurations and they not only are interdependent on each other but also have to act and interact not only with themselves but also with the rest of nature to secure their own survival and furthermore the production and reproduction of life itself.

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Elias further believes that over time the actions of human beings become intertwined and this unintentionally produces change. Dunning contends that the concept of development refers in a minimum sense to a change towards higher levels of differentiation and integration (Dunning, 1992). Essentially, we can apply these understandings of the civilising process to the area of restorative conferencing. In so doing, a wider understanding of the significance of Elias’s ‘web of interdependent human beings’ in both the ‘development’ and ‘immanent dynamics’ categories is created. The meaning Elias attributes to his concept of ‘immanent dynamics’ is that the dynamics of a social figuration are embedded in any social structure such as restorative conferencing and furthermore immanent dynamics appear in the make-up and actions of the people who participate in events such as community-orientated events. However, structures and processes are different in each restorative case, but on the other hand, each of the participants is not separate from the other and each ‘affects’ the other in the manner that Tomkins (1962) outlines. In the same way, the social figurations, which occur in the conferencing process, are not separate or detached from the participants who comprise the six conferences detailed in the research. Dunning states that human beings co-exist through their patterns of interdependency as they attempt to secure their ‘shared and conflicting ends’ through the structure of figuration that they form (Dunning, 1992). Again, this process is reflected in the six-conferencing studies, as the group works to deal with conflict issues. In certain cases, the existence of the ‘Functionalist Exchange’ (Leonard & Kenny, 2010) between individuals or groups in social situations such as restorative conferencing creates ‘social facilitation’ (Hogg & Vaughan, 2005). Functionalist Exchange is the exchange of social emotions such as remorse or forgiveness for wrongdoing, based on the functional role of participants in a restorative conference or event. The creation of the functional exchange between participants creates the crucial connections for this process of social facilitation, and restoration. This social facilitation process is further underpinned by Elias’s concepts of the ‘immanent dynamics of figurations’ and ‘development’. These struggles are largely influenced by factors such as the numbers of conference participants, or through the strengths of the chains of interdependency within a particular individual group or family of the offender in relation to their interaction and relationship with those of the victim’s family or support group. Finally, the degree of self-control that participants exercise over themselves affects the balance within the conference.


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By applying these concepts to the conferencing process, this research demonstrates that Dunning’s understanding of Elias’s theory of civilising process forms the cornerstone for understanding social facilitation processes and the Functionalist Exchange, which takes place as a result. The central observation, which Elias makes through his theory of the civilising process, is that Western societies have experienced a growth in the refinement of manners and social constraints. The refinement of manners is selfexplanatory, but by social constraints Elias is referring to the increase in the amount of social pressure on people to exercise a more even self-control over their feelings in the field of social relations. Mennell contends that Elias through his theory sought to show how the people in advanced contemporary societies have been able to maintain a fairly even and stable control over their ‘more spontaneous libidinal, affective and emotional impulses and over their fluctuating moods’ (Mennell, 1998, p. 14). This would also explain the process of social facilitation and the reduction of social inhibition (Zajonc, 1965, in Hogg & Vaughan, 2008), which results in the elucidation of remorse, guilt and shame during the conferencing process. From the perspective of Elias’s ‘civilising process’, this applies to the concept of the functionalist roles maintained in society. In addition, this understanding also applies to both the individual and family relationships, which emerge as a result of the ‘Functionalist Exchange’ (Leonard & Kenny, 2010) during the restorative conference. In these situations, such a Functionalist Exchange can become inhibited or enhanced according to the size of the group: Of course, the presence of the victim can leave people in an emotive state; ‘People who are strongly in the grip of feelings that they cannot control are cases for the hospital or prison. (Elias, 1986, p. 41)

In addition, remorse must also be elucidated from the offender, as part of the process of restoration. The production of sorrow, remorse, acceptance or other aspects of social facilitation involves some risks on behalf of all participants. This reduction in the participant’s social inhibitions is described by Elias in the following quote: Different moods are evoked and perhaps contrasted, such as sorrow and elation, agitation and piece of mind. Thus the feelings aroused in imaginary situation of human leisure activity are the siblings of those aroused in real life, situations, that is what the expression ‘mimetic’ means but the latter are linked to the never ending risks and perils of fragile human life, while the former momentarily lift the burden of risks and threats, great or small, surrounding human existence. (Elias, 1986, p. 42)

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This expression of emotion for many participants in restorative conferencing is a liberating experience because in society at large many people are more isolated and have very few ‘opportunities for collective manifestations of strong feelings’ (Elias & Dunning, 1986, p. 43). Within the conferencing process, there is the sense that the participants have to exercise different levels of self-control and self-constraint, in order to achieve full restoration within the group. The points made by Dunning and Elias on emotions are relevant in relation to the social facilitation of the conferencing process. Pressures and restraints have always existed and possibly will always exist in social facilitation processes such as restoration conferencing, and restorative events provide the participants with the opportunity to loosen the controls and constraints they place on themselves in relation to expressing their emotions. However, Elias contends that a close analysis of the long-term civilising process indicates that as restraints on people’s behaviour becomes more all embracing, more even and internalised as a form of self-operating control that counter moves appear to loosen social and personal constraints (Elias, 1986, p. 66). However, at the same time, Elias acknowledges that an overall feature of the long-term civilising process is reflected in the way that emotional exchange occurs. In order to provide a more fulfilling sense of restoration for participants, it is important that the restorative conference allows for the fullest expression of anger from the victims and remorse from offenders that is socially tolerable for participants, which in turn is a part of the re-civilising process itself. Elias and Dunning also contend that a realistic level of feelings be maintained throughout the re-civilising process: If tensions arise in the wider society, if restraints on strong feelings become weakened there y the level of hostility and hatred between different groups rises in good earnest. (Elias & Dunning, 1986, p. 43)

Punishment according to Garland is a phenomenon commonly regarded as a uniform object or event rather than, he states, as a complex set of interlinked processes and institutions (Garland, 1999). Punishment he suggests is not a singular entity but rather in itself a social institution, which embodies and condenses a range of purposes and has a wealth of historical meaning (Garland, 1999). Early sociological and criminological theorists such as Durkheim (1904/1950), Merton (1956), Foucault (1977) and in lesser terms Elias (2000) move back and forth between the different areas in the penal process, rather than producing different interpretations of the same thing.


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With the exception of studies of the ‘institutions of imprisonment’ (see Goffman, 1961; Morris & Morris, 1963), the body of work is uneven and disparate in quality, resulting in a diverse range of sociological explanations, characterisations and intellectual traditions that adopt different angles of approach to the study of punishment. However, whilst there is little coherence when all of these works are put together, the common thread between them is that they all accept that certain social forces can cause or influence criminal behaviour (Garland, 1999). As social construction changes, so does the nature and patterns of control over it (Qvortrup, Bardy, Sgritta, & Wintersberger et al., 1994). As previously stated from the sixteenth and seventeenth centuries onwards, childhood emerged as a social construction distinct from adulthood. As a result of the institutionalisation of childhood (Qvortrup et al., 1994; Arie`s, 1996; James, Jenks, & Prout, 1998), it is not surprising that there has been adverse affects in the juvenile justice system where complex and at times controversial changes have occurred down through the years (Muncie, 2002). It is my aim in this section to critically review the history of the juvenile justice system from the nineteenth century to the present day.

2.10. SOCIAL FUNCTIONS AND THE COMMUNITY The next section will demonstrate how the social control shown in Elias’s understanding of civilising and decivilising processes can be applied to the family. In order to do this, Parson’s and Marx’s theories of the organisational role of the family will be explored. The section will also examine the significance of what this research defines as the ‘Functionalist Exchange’, which underpins the socialisation process surrounding crime and deviance. This Functionalist Exchange can be understood by applying a functionalist theoretical perspective to the various roles that are taken on during the socialisation process. Parsons has provided one of the most enduring and comprehensive analyses of that key functionalist group, the family. In his view the family is seen as a unit that performs various functions within the wider pattern of the social organisation of society. The functions associated with marriage and the family are often described as sexual, reproductive, economic and socialisation functions. Firstly, socialisation; when children learn the cultural norms of the society into which they are born, the process is referred to as primary socialisation. Because this process happens during a child’s early years, the family is

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considered hugely important for the development of human personality. Secondly, the family assumes responsibility for the regulation of sexual activity. Every culture regulates the sexual activity in the interest of maintaining kinship organisation and property rights. Different societies have various rules regarding who can marry whom, but they usually apply the incest taboo to close relatives. Apart from the fact that reproduction could have negative mental and physical effects on offspring, it also minimises sexual competition between families. By restricting sexual relations, people are forced to marry outside their immediate families to form broader alliances and keeps kinship intact. Thirdly, the family provides the social placement for its members. A child is socialised by race, ethnicity, religion and social class that is ascribed at birth through the family. Families permit the transmission of wealth and status from parent to children. According to the functionalist perspective the family also provides material and emotional security. Family members are dependent on each other economically and emotionally. From a Marxist standpoint the family is seen as an institution that is involved in ‘promoting dominant societal values and perpetuating the exploitation of subordinate groups by upholding the norms and values of capitalist society’. The Marxist perspective views the role of the family as one that is routed in the social reproduction of inequality. This occurs through the socialisation of children, where the family is seen as reproducing both labour and power, and a false ideology, which keeps the capitalist system going. ‘Families thus support the concentration of wealth and reproduce the class structure in each succeeding generation’. Functionalist and Marxist theories have a certain amount in common. They share the structuralist assumption that social institutions are inter-related and see the family as having to adapt to some degree to other institutions. Functionalist and Marxist theories also have some congruence in relation to the argument that the family plays an important role in biological reproduction, and in social reproduction such as in maintaining, replenishing and transmitting social values and structures from one generation to another, in the socialising process. However, both theories have different points of origin for this debate, and both focus on different aspects of the social world and extol very different perspectives on the family. Functionalism locates the modern industrial order as a central part of the frame of reference for society and sees the family as meeting important social requirements within that societal framework. Marxists start from the idea of class struggle and division and see the family as reproducing capitalist values and relations, whereas functionalist theory has provided


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support for conventional family values. Marxist theories have developed a critical analysis of the patriarchal structure of the traditional family unit.

2.11. GOVERNMENTALITY AND JUSTICE In his 1999 text Governmentality, Mitchell Dean sets out a critique of the pastoral state by way of an exploration of Foucault’s concept of governmentality as a framework for understanding three key themes: the neo-Liberal critique of the welfare state, the collapse of ‘existing socialism’ in Eastern Europe and the eroding of rights won by the New Left in the 1960s. The welfare state has come to be diminished at the same time as the New Right agenda for social control has emerged as a central plank of the ‘law and order’ agenda. For Dean, any Foucauldian account of ‘governmentality’ in contemporary society must retain this realisation of the existence of the nodes of governance which lie within the ‘particular mentalities, arts and regimes y the conduct of conduct’ (Dean, 1999, p. 2) of the administrative process. This form of governmentality provides a valid context for the role of state in the globalised era; therefore, as the power of nation-state is restricted, the meanings surrounding governance have altered. ‘Government’ now involves layers of bureaucracy with power retained by a coterie at the heart of the ruling elite. As globalisation has come to challenge the wider influence of the state, power has been retained at the core of the administrative process. The combination of this regrouping of power within the hands of core elites has occurred alongside the prevailing ideological assault on the welfare state, leading to extensive marginalisation within an increasingly fractious society. Authority (as opposed to power) is then derived from the various agencies and bodies that recreate the language of governmentality, ‘invoking particular forms of truth, and using definite resources, means and techniques’ (ibid., p. 3). Furthermore, the emergence of corporate and civil society sectors as active participants in the multi-layered field of governance has led to the creation of new forms of governance identities, which alongside the welfare state include a myriad of interest-driven entities in civil society including the economic (both wealth and poverty orientated), legal, gendered or feminist, trade union, ethnic/religious, youth or ageing, environmental and pastoral/care sectors. Additional administrative and bureaucratic elements augment these entities, adding to the array of governmental forces. New discourses of governmentality have subsequently emerged from each of

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these sectors; policy is then rewritten accordingly to suit each particularistic agenda as identities are re-branded as varying ideological groups attain degrees of power. Therefore, as Foucault has established, ‘governmentality’ becomes the evolutionary process by which the behaviours and meanings of government become established and legitimated. This aspect of legitimation is comparable with Elias’s ‘civilising process’; essentially the etiquette of government is born of this transformative development. Furthermore, the process of establishing modes of governmentality is profoundly sociological; therefore, cultural and pluralistic forms of expression vie with established political understandings in the creation of the norms and patterns of this multi-agency form of administrative rule. Consequentially, this network of relevant agencies creates competition within policy frameworks despite these agencies having shared interests and goals. Moreover, a new form of governance for these competing levels of government is required, one which attempts to rationalise the variety of discourses emerging from the processes of a dichotomous and sometimes adversarial method of policy formation. It is the all-consuming calculation of this etiquette of rules which has come to embody the problems facing contemporary forms of governance. If we also include supra-state directives from bodies such as the European Union, it soon becomes clear that a veritable constellation of entities and agencies all vie for a share of the processes and outcomes of existing governance models. All forms of ethical and value-driven conduct is then validated by the competing sectors and interests involved in governance. In the next chapter, we will examine two such sectional interests: the ‘pastoral’ sector and their creation of a governmental approach to the role of the police within the context of the workings of the state.

2.12. SUMMARY The above sections have discussed the theoretical framework which surrounds understandings of key themes such as deviance, justice and governmentality. The discussion presented represents a wider ranging collection of theories and arguments about the responses to questions of justice in society. By presenting this debate in a thematic manner, we have broached the key critical questions about justice in society as they have been addressed in various disciplines. We will now attempt to address these justice-related issues in the following chapter on restorative justice.

CHAPTER 3 RESTORING JUSTICE TO THE COMMUNITY

3.1. INTRODUCTION: WHY RESTORATIVE JUSTICE? The primary goal of the Restorative Justice process is not punishment but making good the harm done by offending for the victim, the community and the offender. Offenders have to take responsibility for their actions as a precondition to addressing the harm that they have caused. Offenders become aware that a crime is committed, not against an abstraction, but against someone real, a person like themselves and against their community, who are directly and indirectly affected by what has happened. Crime and conflict affect relationships between individuals who are left outside the court system altogether by conventional justice. Proceedings and arguments of the restorative process are voluntary for all parties. People are given the opportunity to partake in mediation, or to accept reparation. The process is always confidential however; outcomes and agreements can be made public, depending on the authorisation by participants. Like the crime it is supposed to deal with punishment is nowadays seen as a chronic problem (Garland, 1999). The renewed interest in restorative justice in America and in Europe had arisen out of a growing recognition that a reliance on traditional forms of punishment such as detention and incarceration is failing to deliver a sense of fairness, satisfaction and security from the justice system. It can be argued that our criminal justice system (i) Excludes the victim from the system (ii) Is centrally concerned with punishment

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This does not produce fairness or invoke empowerment to either the victim or the offender. Restorative justice operates within the framework of the law and is overseen by the courts to ensure that the outcome is reasonable. It allows the victim and the offender to meet face to face and discuss the harm they have suffered as a result of the offence. It empowers victims and offenders and provides them with the opportunity to take action to restore one another to their pre offence state. It gives both parties the opportunity to reintegrate into society with lower rates of stigmatisation for the offender. An important point to note is that the offender or offenders at the beginning of the restorative event are made aware that if they fail to co operate with the proceedings they may be subject to a more adversarial response from the courts. The main argument made by advocates of Restorative Justice is that sentences should move away from punishment of the offender towards restitution and reparation, aimed at restoring the harm done to the victim and to the community. Restorative Justice is not a new idea in criminology or in crime control; most traditional systems of justice in continents such as Africa and Asia have been based on restorative justice (Maguire, Morgan, & Reiner, 1997). Celtic, Aboriginal and Native American forms of justice are just three examples of systems that operate on the basis of restoration and reparation. Unlike contemporary secular societies, traditional forms of justice were inextricably linked to the religious and cultural make up of the people whose lives criminal behaviour affects. The philosophy of restorative justice embraces a wide range of human attributes including healing, compassion, forgiveness, mercy, mediation, reconciliation and where appropriate sanctions (Consedine, 1995). In contemporary society, justice has become the presence of state and supra-state agencies. The United Nations defines Restorative Justice as a follows; Restorative Justice is an alternative measure in the criminal justice system that is not punitive in nature but rather seeks to render justice to victims and offenders alike, instead of tilting the balance heavily in favour of one of the other stakeholders to the disadvantage of another. It seeks to re-establish social relationships that are the end point of restorative justice and seeks to address the wrongs in the doing and the suffering of a wrong that is also the goal of corrective justice. (United Nations, Restorative Justice, Report of the Secretary-General, 2002, p. 3)

The Friends World Committee for Consultation provides the following definition; ‘Restorative Justice seeks to balance the concerns of the victim and the community with the need to reintegrate the offender into society. It seeks to assist the recovery of the victim and to enable all parties with

Restoring Justice to the Community

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a stake in the justice process to participate fruitfully in it’ (United Nations, Restorative Justice, Report of the Secretary-General, 2002, p. 3).The concept of Restorative Justice dates back over centuries. It is recognised worldwide as having potential benefits for all those affected by crime. The practice of Restorative Justice seeks to repair the harm done to the victim by an offender. It concentrates on the harm done and who has been affected by the harm. The victim gets an opportunity to express to the offender how he/she been affected by the offender’s behaviour (Graef, 2001). It allows the offender to realise how his/her behaviour has affected the victim and the community. It gives the offender an opportunity to take responsibility for his/her actions. This chapter begins with an overview of restorative justice. It will set out the definitions and principles of restorative justice. It discusses the myths and realities of restorative from the perspective of Braithwaite and Daly. The chapter further develops understanding of restorative justice by introducing a practitioner’s perspective and using this to further critique Braithwaite’s theory of ‘Reintegrative Shaming’. This is achieved by applying Tomkins’ ‘Affect Theory’ and Nathanson’s ‘Compass of Shame’ to Braithwaite’s own understanding of Braithwaite’s ‘Reintegrative Shaming’. By critiquing Braithwaite’s understanding of ‘Reintegrative Shaming’ through the practitioners perspective the chapter provides a fuller understanding of the potential for restorative justice to provide a meaningful framework of mediation in policy and practice.

3.2. BACKGROUND TO RESTORATIVE JUSTICE The concept of Restorative Justice dates back centuries in tribal traditions. Aboriginal and Native American forms of justice are just two examples of systems that operate on the basis of restoration and reparation. Maori tribes in New Zealand have been using the Restorative Justice model for hundreds of years to deal with crimes and offences committed against members of the same tribe. The process operates as follows, if a member of the tribe commits an offence or inflicts harm on another member of the tribe they are required to meet with their victim face to face, in front of other members of the tribe, discuss the incident and offer some form of reparation for the harm that they have caused (Consedine, 1995). Restorative justice is a distinct philosophy of justice, which focuses on making amends for harm done (Wright, 1999; Edgar & Newell, 2006). The fundamental principle of this philosophy is that when a person has harmed

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another, the most useful response is to try to repair the harm (Consedine, 1995; Johnstone & Van Ness, 2007). Restorative justice stretches far beyond ideas about criminal justice to encompass civil renewal, individual responsibility, conflict resolution, empowerment, shaming and forgiveness (Braithwaite, 1999; Hudson, 2003). While the term ‘restorative justice’ in itself is relatively recent, when reviewed in the context of its historical development it becomes apparent that key terms of restitution, reparation, compensation, reconciliation, atonement, redress, community service, mediation, are all used interchangeably in the literature (Weitekamp, 2002). These key terms have collectively been united under the umbrella of what is now known as restorative justice. Restorative justice operates within and outside of the criminal justice process (Morris et al., 2002; Roche, 2004). Whilst it may have only come to prominence in Western societies in the 1980s, the concept is far from new and can be linked to traditions of the Celts, Maori, Samoans, other indigenous peoples, as well as having roots in various religious communities (Consedine, 1995; Gelsthorpe & Morris, 2002). For some commentators it is not a new form of justice but rather dates back and returns society to pre modern forms of justice (Zehr, 1990). In this context restorative justice is seen as timeless, with the modern criminal justice system as an abnormal development requiring explanation (Crawford, 2002; Daly, 2002; Johnstone, 2003). The modern state is considered to have ‘stolen the conflict’ from communities, victims and offenders, and in the process buried longstanding traditions of restorative justice (Christie, 1977). Some theorists go as far to suggest that restorative justice has been the dominant model of criminal justice throughout most of human history for all of the world’s people (Braithwaite, 1998). Furthermore, its re-emergence in recent decades is connected to a number of social, political and cultural changes, for example the rearticulation of rights and responsibilities between the state and civil society particularly inspired by neo-liberal assaults on the welfare state, and the increasing salience given to victims of crime (Crawford & Newburn, 2003). According to advocates, the revival of restorative justice has been borne out of a critique of traditional criminal justice (Johnstone, 2002). They claim that it offers a distinct and unique response to crime that can clearly be differentiated from retributive and rehabilitative responses (the latter may show some similarities to restorative concerns but their purpose is quite different) (Weitekanp, 1999). According to Walgrave (1994) the retributive


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response to crime takes place in a societal context of state power, focuses on the offence, inflicts harm, seeks just deserts, and ignores the victim. The rehabilitative response to crime takes place in the context of a welfare state, focuses on the offender, provides treatment to him or her; seeks conforming behaviour and also ignores the victim. Restorative Justice, on the other hand takes place in the societal context of empowering the victim, focuses on losses, repairs the damage inflicted, seeks satisfied parties and views the victim as the central person of the whole process (Hoyle & Young, 2002; Hudson, 2003) most significant development in criminal justice and criminology over the past two decades (Hudson, 2003; Crawford & Newburn, 2003; Bazemore & Schiff, 2005). According to some commentators restorative justice became the global social movement for criminal justice reform in the 1990s and into the new millennium (Braithwaite, 1998). It is most commonly characterised by what it is an alternative to, and gives new focus to the concept of informal justice (Braithwaite, 2002; Roche, 2004). Broadly speaking its goal is to transform the way in which contemporary societies view and respond to crime and associated forms of problematic behaviour (Johnstone & Van Ness, 2007). For example, juvenile justice as alluded to earlier can be regarded as swinging back and forth during the past century between a justice and a welfare model, between retribution and rehabilitation (Muncie, 2002; Goldson, 2006). Restorative justice is heralded as a long overdue third model or a new ‘lens’ in which to perceive crime (Zehr, 1995) – a means of avoiding the sway and heading more consistently in a new direction, at the same time enlisting the support of both liberal politicians who advocate the welfare model and conservative politicians who propose the justice model (Daly & Braithwaite, 2002). The appeal of restorative justice to liberals is a less punitive justice system. The appeal to conservatives is that restorative justice strongly emphasises victim empowerment, empowers families and communities, takes account of home responsibilities and saves money as a result of the minimum use of punishment. Specifically it seeks to replace existing professionalised systems of punitive justice and control with community based reparative justice and moralising social control (Johnstone & Van Ness, 2007). Tony Marshall, of the Restorative Justice Consortium has defined restorative justice as the following: ‘A process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’

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(Marshall, 1999, p. 18). Marshall contends that Restorative Justice should aim to achieve the six following outcomes:

The denunciation of the crime The reform of individual offenders The prevention of crime Helping victim Making good the suffering caused by crime Keeping the costs of administering justice to a minimum (Marshall, 1999, p. 18)

Restorative justice essentially views the criminal conflict foremost as a breakdown in relationships between individuals and only secondly, as a violation of the law (Zehr, 1990). Its seeks to repair the relationship through a healing process designed to meet the ends of the victims on the one hand for example elimination of the fear of revicitimsation, and on the other hand reintegrate the offender into society. The traditional retributive focus of the formal criminal justice system, incorporating the notions of punishment and ‘just deserts’ are not the goals of the restorative justice process and are viewed as ineffective, undesirable and counterproductive to prevent the offender from re-offending. The restorative justice process looks to the needs of parties: reparation of injuries, relationships and physical damage to the victim as well as attending to the needs of the offender who brought about the crime in the first place. Restorative Justice in very simple terms is another way of dealing with offenders. Many see it as an alternative to traditional approaches. The central focus of Restorative Justice is the harm caused by the offence. The offender has to redress this balance voluntarily. This is achieved by acknowledging the harm caused and by righting the wrong by engaging in reparation. In the current retributive system, crime is considered a violation against the State. The aim of retributive justice is therefore to establish guilt and hand out a punishment. Retributive justice is an adversarial system with the central component of punishment. It is at the heart of the adversarial systems of contemporary arenas for justice and politics, such as the courts or the parliament where opposing groupings attempt to put down their opponents, with little concern for finding ‘justice’ for those they are charged with representing. Restorative Justice sees crime as a violation on people and their relationships. The aim of restorative justice therefore, is to recognise the harm caused to victims, the community and offenders. It endeavours to repair the damage caused. The paradigms of criminal justice processes, restorative


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justice versus retributive justice put forward by Zehr (1990) provides an in-depth comparison of what both processes stand for in simple terms.

3.3. THE PRINCIPLES OF RESTORATIVE JUSTICE Restorative justice is a process whereby all of the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future. (Marshall, 1996, p. 37)

This proposed definition of restorative justice by Marshall is increasingly used internationally (Morris & Maxwell, 2002). Whilst it is helpful it fails to specify who or what is restored and to define core values of restorative justice (Braithwaite, 1999). Some argue that it is too restrictive (Bazemore & Walgrave, 1999; McCold, 2000). Others suggest that restorative justice embraces a creative range of potential solutions with ones of its main hopes being that there is reconciliation, rapprochement or greater mutual understanding between the parties (Johnstone & Van Ness, 2007). The holistic reintegration of the offenders into the community is also a desired outcome in the philosophy of restorative justice. A further definition which states the aims of restorative justice clearly as well as describing the process by which they are to be achieved is Van Ness’s explanation that the purpose of restorative justice is ‘the restoration into safe communities of victims and offenders who have resolved their conflicts’ (Van Ness, 1993, p. 258). In terms of what is to be restored, Braithwaite states ‘whatever dimensions matter to the victims, offenders and communities affected by the crime’ (1999, p. 6). The collective concern of all of those with an interest in restorative justice is to provide a robust definition of what restorative justice and its central components are in order to make it possible to measure empirically and to clarify the central values underlying restorative practices against counter claims (Crawford & Newburn, 2003). Whilst there is considerable debate in the literature regarding the nature of restorative justice and Marshall’s definition, it does identify some of the main principles of restorative justice: the notion of stakeholder inclusion, the importance of participatory and deliberative processes and the emphasis upon restorative outcomes. Firstly, the notion of stakeholders seeks to recognise that crime is more than offence against the state as stakeholders, and they are considered to be more directly affected by acts of harm rather than the state (Hudson, 2003). Stakeholders include not only the victim and the offender but also the

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families and supporters of each and other members of their respective communities who may be affected or who may be able to contribute to the prevention of further offending (Roche, 2004). The practical aim of restorative justice is to consider the impact on victims and others involved, be they family, friends, peers or members of the wider community (Sharpe, 1998). It also endeavours to explore the impact upon the community and implicitly seeks to limit the role of legal professionals. Advocating Christie’s call ‘let’s have as few experts as we dare’ (1977, p. 12), restorative justice prefers to empower victims, offenders, family members and others as partners in the justice process. According to Crawford and Newburn (2003, p. 22) ‘these are the new stakeholders of a revised vision of justice, which seeks to recognise and bring into play, through their active involvement, a broader conceptualisation of the appropriate key actors in dispute processing and resolution’. Therefore restorative justice relocates authority in responses to crime away from the state to stakeholders themselves who are afforded the maximum degree of control over deliberation and decision-making (Hudson, 2003). Secondly, the importance of participatory and deliberative processes emphasises the value of participation, empowerment, communication, dialogue and negotiated agreements. Informal environments in which stakeholders are comfortable are conducive to good communication between parties. At the heart of the restorative justice philosophy lies a concern with a particular mode of participatory conflict resolution that centres on consensus building through a problem solving approach to crime that is grounded in local knowledge and local capacity (Johnstone & Van Ness, 2007). Restorative processes emphasise the importance of offender and victim participation- choice and control in the process of face-to-face encounters and decision-making. Restoring a sense of control to the central parties is a key aspect of the restorative process (Wright, 1999). One intended consequence of party-centred control and participation is to restore responsibility to participants, in the belief that this will encourage offenders to be more accountable for their actions and to encourage others to take responsibility for ensuring the successful implementation of any agreement reached (Maxwell & Morris, 2002). Discussing the consequences of offences is seen to be a more powerful way of communicating the gravity of their offence to offenders in a way that brings home the impact on victims (Morris, 2002). It is believed that a process that treats people with respect and encourages their empowerment is more legitimate in the eyes of those participating. Furthermore that it encourages a general respect for the law and


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understanding of the consequences of individual action on others (McCold, 2001). Restorative justice programmes are designed to encourage participation, empowerment, communication, dialogue and negotiated agreements between parties. Thirdly, restorative justice maintains and appeals to particular restorative outcomes or resolutions. Repairing the harm caused by the crime to all of those directly and indirectly affected is the ultimate aim of restorative interventions. Reparation may be symbolic as well as material, the intention being that outcomes should seek to heal relationships (Braithwaite, 1998). In practice, these often include, verbal or written apologies, compensation or direct reparation to the victim for the harm and indirect reparation to the community, which may take a variety of forms (Hudson, 2003). It is suggested that restorative outcomes should be flexible and party centred as well as problem-oriented (Johnstone, 2002). In addition restorative justice can be used to settle community disputes. Braithwaite contends that Restorative Justice involves a different way of thinking about traditional notions such as deterrence, rehabilitation, incapacitation and crime prevention. He believes that restorative justice is about restoring victims; a more victim centred criminal justice system as well as restoring offenders and the community (Braithwaite citied in Johnstone et al., 2003, p. 86). He states that the task of restorative justice is to confront the shame of the offender, make them responsible for the bad consequences suffered by the victim and apologise with sincerity, essentially it aims to restore dignity for offenders. Braithwaite (1989) also states that in order for victims, restorative justice aims to restore social support through institutionalising the gathering around of friends during a time of crisis. Furthermore, by removing the sense of insecurity and disempowerment of both victims and offenders through a process of deliberative democracy society can design institutions so that concerns about issues like unemployment have a channel through which they can flow from discussions about local injustices up into national economic policy making debate (Braithwaite, citied in Johnstone et al., 2003). Braithwaite doesn’t advocate that society abolishes the concept of crime or the key elements of state criminal justice systems which have been globalised, rather he believes in shifting power from them to civil society, keeping key elements of state systems but shifting power away from central institutions and checking power that remains by deliberative democracy from below, for example self-regulatory practice which restorative justice enables (Braithwaite, cited in Tonry et al., 1998). Braithwaite has been to the forefront in the study of restorative justice, especially through the means of

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his concept of reintegrative shaming. He contends that there are many reasons for the criminal justice system failing in its efforts to control levels of crime such as the stigmatisation of criminals. A central tenet of Braithwaite’s theory of Reintegrative Shaming holds that it is the societies with the lowest crime rates that have the ability to shame criminal conduct most effectively (Braithwaite in Johnstone et al., 2003). He believes that there is an important difference between shaming a person and stigmatising them. For Braithwaite, ‘reintegrative shaming’ prevents crime, while stigmatisation is a form of shaming which makes crime problems worse. Reintegrative shaming means disapproving of the wrongness of the act, while at the same time treating the person who committed the act as essentially a good human being. ‘Reintegrative shaming’ in summary relates to a strong disapproval of the act but conveying and articulating a response from the victim that in turn generates moves to forgive and respect the offender. In her 2003 article ‘Restorative Justice: the real story’, Daly addresses the problem of defining restorative justice, she states that this is not easily done as it encompasses a variety of practices at different stages of the criminal justice process. She also points out that in most legal issues involving individual criminal matters, restorative justice practices have only been applied to those offenders who have admitted to an offence. Therefore it deals with the penalty phase of the criminal process for admitted offenders not the fact-finding phase. Daly’s work differs greatly from Braithwaite’s largely due to the fact that she deals with myths of restorative justice and furthermore she uses data obtained from observing conferences to achieve her objective. In her subsequent work, Daly also discovered that participants engaged in a flexible incorporation of multiple justice aims and outcomes (Daly, 2000, 2001, 2005). These aims included some elements of retributive justice, censure for past offences, some elements of rehabilitative justice in the form of asking questions such as what could be done to encourage future law abiding behaviour and some elements of restorative justice such as how the offender make up for what they had done to the victim (Daly citied in Johnstone et al., 2003). As a result of her findings, Daly was provoked to consider the relationship between restorative and retributive justice and the role of punishment in restorative justice. She states that because the term’s ‘retributive justice’ and ‘restorative justice’ have such strong meanings and are largely used by advocates as metaphors for the bad and the good justice, perhaps they should be analysed in a way, which explains current and future justice practices (Daly citied in Johnstone et al., 2003).


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Nonetheless, contemporary practices of restorative justice which are in operation in some jurisdictions are replicas of pre-modern forms of justice, rather they are new justice practices, which have many bits of ‘old’ in them. By the old justice, Daly refers to modern practices of courthouse justice which permit no interaction between victim and offender, where legal actors and other experts do the talking and make decisions, whose stated aim is to punish or at times reform an offender. By the new justice, she refers to a variety of recent practices which bring victims and offenders as well as others together in a process where both lay and legal actors make decisions, whose aim is to repair harm for victims, offenders and other members of the ‘community’ in ways that matter to them. Therefore as Braithwaite and Petit contend, restorative justice has a better chance than ‘just deserts’ of being made equally available to both rich and poor (Braithwaite & Petit, 1990). The story of one offender, which both authors refer to in their work, depicts the practice of restorative justice in operation. In the alienated urban context where the existence of a community is not apparent in a satisfactory way, a criminal justice system aimed at restoration can construct a community of care around a specific victim or offender. Both state that it is the empowerment principle of restorative justice that makes this possible. It is a form of empowerment, which permits process control (Daly, Braithwaite citied in Johnstone et al., 2003). Braithwaite (1989) further states that restorative justice must be a culturally diverse social movement that accommodates a rich plurality of strategies in pursuit of the truths it holds to be universal. We can achieve this he believes by carrying out a culturally specific investigation into how to save and revive restorative justice practices that remain in all societies and how to transform state criminal justice by making it both more restorative and by rendering it abuses of power more vulnerable to restorative justice. Daly agrees with Braithwaite’s ideal of a culturally diverse social movement and states that the real story of restorative justice offers hope not only for a better way to do justice but also for strengthening mechanisms of informal social control and as a means to minimise reliance on formal aspects of social control, primarily the machinery and institutions of criminal justice.

3.4. RESTORATIVE JUSTICE IN THE COMMUNITY In the past the formal criminal justice system has been overly focused on what O’mahony (2001, p. 11) calls, ‘public interest’ which effectively

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amounted to the state overriding the interests of the other stakeholders. Restorative Justice on the other hand is also perceived as a ‘philosophy that embraces a wide range of human emotions including healing, mediation, compassion, forgiveness, mercy, reconciliation as well as sanction when appropriate’ (Consedine, 1995, p. 183). According to Consedine (1995) the restorative approach to crime came about following mounting concern over the exclusion of the victim from the criminal justice system and also through the belief that there was a lack of participation by the offender. He believes that the restorative justice process recognises a worldview that says we are all interconnected and that what we do, be it for good or evil, has an impact on others. Restorative Justice in Consedine’s view offers a process whereby those affected by criminal behaviour, be they victims, offenders, the families involved or the wider community, all have a part to play in resolving the issues that flow from the offending. Under restorative justice, victims and offenders assume central roles and the state takes a back seat. The restorative process does not focus on vengeance and punishment but seeks to heal both the community and the individuals involved. This is achieved by a process that puts the notion of reparation, not punishment, at its centre (Consedine, 1995). Essentially, this understanding of Restorative Justice philosophy is based on three beliefs; that crime results in harm to victims, offenders and communities. Justice is not just the preserve of the state. Moreover, victims, offenders and communities should be actively involved in the criminal justice process. In promoting justice, the government should be responsible for preserving order (Van Ness, 1996). These general beliefs lead to a number of common elements among Restorative Justice programmes. The key features of the concept of Restorative Justice can therefore be outlined as follows: Restorative Justice is a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future. Restorative Justice is a problem-solving approach to crime, which involves the parties themselves, and the community generally in an active relationship with statutory agencies. Restorative Justice is not a particular practice, but a set of principles, which may guide the general practice of any agency or group in relation to crime. Restorative Justice seeks to balance the concerns of the victim and the community with the need to reintegrate the offender into society.


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Restorative Justice seeks to assist recovery of the victim and enable all parties with a stake in the justice process to participate in it. Restorative Justice is not a movement alongside or against the current criminal justice system but must be seen as a fully integrated approach with the existing criminal justice system in order to modify the foundations of the system itself (Aerston, 1997, p. 14). This does not necessarily produce fairness or invoke empowerment to either the victim or the offender. Restorative justice operates within the framework of the law and is overseen by the courts to ensure that the outcome is reasonable. It allows the victim and the offender to meet face to face and discuss the harm they have suffered as a result of the offence. Restorative Justice empowers victims and offenders and provides them with the opportunity to take action to restore one another to their pre offence state. It gives both parties the opportunity to reintegrate into society and lower rates of stigmatisation for the offender. An important point to note is that the offender or offenders at the beginning of the restorative event are made aware that if they fail to co operate with the proceedings they may be subject to a more adversarial response from the courts.

3.5. THE PRACTITIONER’S PERSPECTIVE In order for Restorative Justice to succeed in the community, the practitioner’s perspective must be incorporated alongside its key theories and principles. While Braithwaite’s theory of ‘Reintegrative Shaming’ has been the fore within the field of restorative justice, Sylvan Tomkins’ (1962) theory provides a greater understanding of the benefits of the restorative conferencing process for diverse groups. Tomkins’ ‘Affect Theory’ is based on a psychological theory of human affect. The term ‘Affect’ which Tomkins uses specifically refers to the biological portion of emotion or what he calls the hard-wired, pre-programmed, genetically transmitted mechanisms that are present in each human being. These mechanisms when triggered precipitate a known pattern of biological events. However it is also acknowledged that in adults, the affective experience is a result of both the innate mechanism and a complex system of nested and interacting ideoaffective formations. Tomkins’ theory has been analysed and presented in more detail through the work of Nathanson (1992). ‘Affect Theory’ is a very effective tool in explaining the success of the scripted conference. The conferencing process

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encourages free expression of affect, which is the biological basis for emotion and feeling. The conference provides an opportunity for participants to express true feelings while minimising negative affects and maximising positive affects. According to Tomkins’ theory this kind of environment is the ideal setting for healthy human relationships. The restorative based conference script utilises open-ended questions, which allow for the expression of the nine basic affects, which Tomkins identifies as being present in every human being. These nine affects are listed as Enjoyment-Joy, Interest-Excitement, Surprise-Startle, Shame-Humiliation, Distress-Anguish, Disgust, Fear-Terror, Anger-Rage and ‘Dissmell’. Tomkins presents most of these affects as word pairs which name the least and the most intensive expressions of that affect. When a conference begins participants are usually feeling disgust, dissmell (which originally originated as a response to offensive odour), anger-rage, distress-anguish, fear-terror and shame-humiliation. These six negative affects are the most obvious when participants take their seat in the circle and when the conference itself begins. When participants respond to the scripted questions such as, ‘What happened?’ ‘What have your thoughts been since?’ ‘How has this affected/ harmed/hurt you and others?’ and ‘What has been the hardest/worst thing?’ they may express all or some of the negative affects and feelings. Anger, distress fear and shame are diminished throughout the sharing process amongst participants. Their expression helps to reduce the intensity of the affects, and may be applied with relevant cultural sensitivity. As a restorative conference proceeds participants experience a transition, which is characterised by the neutral affect of surprise or startle (Nathanson, 1992). Victims, offenders and their supporters are usually surprised by what people say during the conference and how much better they begin to feel as a result of the expressions of affect by others. This approach may also reduce ethnic tensions in the community. When the conference reaches the agreement phase, participants are usually expressing positive affects of interest-excitement and enjoyment-joy. This is particularly evident when participants are asked to respond to the following scripted questions: ‘What do you think/feel about what has been said?’ ‘What do you think about what had happened here?’ ‘What would you like to come out of the meeting?’ People recognise the affects seen on others’ faces and tend to respond to the same affect. When one is angry, others become angry. For instance, when one feels better and smiles so do others. Tomkins refers to this as ‘affective


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resonance’ or empathy. Through this ‘affective resonance’ conference participants make the emotional journey together feeling each other’s feelings as they move from anger, distress and shame to interest and enjoyment. For the conference the prospective facilitator can take comfort and gain confidence in understanding that Tomkins’ (1962) ‘Affect Theory’ is reliably demonstrated by the scripted conference process. Participants consistently move from negative to positive feelings in the safe and structured environment created by the script (O’Connell, Wachtel, & Wachtel, 1999). Nathanson’s (1992) ‘Compass of Shame’ makes it very clear how people from diverse backgrounds react to each other and express their shame. Nathanson argues that people usually react with one or more of four general patterns or ‘scripts’ which depict as directions on a compass: attack other, attack self, withdrawal and avoidance. For example, when parents of their offending children blame and criticise the school or the police officer, when confronted with an offence, they demonstrate the attack other response. These parents of offenders try to avoid shame by putting the responsibility on others. This is the most common response to shame demonstrated in today’s society. Another contemporary response is avoidance through alcohol, drug abuse or thrill seeking behaviour such as joy riding in a stolen car. However several decades ago the common responses to shame were attack self and withdrawal. In attack self the shamed individuals are self-punishing and unreasonably hard on themselves. In withdrawal the shamed individuals hide as a result of being overwhelmed by the shame. These responses to shame are normal however they are harmful and need to be addressed (O’Connell et al., 1999). Conferences can help people move beyond the compass of shame through acknowledgement and expression of shame and through subsequent reintegration. Due to the fact that the restorative conference affirms the intrinsic worth of the wrongdoer and condemns only the objectionable behaviour, parents and offenders feel less threatened and more equipped to acknowledge responsibility. O’Connell (1999) also argues along with other theorists such as Braithwaite (1989) and Daly (2003) that victims also experience shame. Victims may blame themselves for the incident, withdraw and hide their feelings and sometimes distract themselves. Victim may also ‘lash out’ at others close to them who are not responsible for the offence. In providing an outlet for expressing feelings and moving beyond shame to resolution, restitution and reintegration, the restorative conference is as important to victims as it is to offenders (O’Connell et al., 1999). This process paves the way for improved cultural understandings in place of mistrust and misunderstandings from poorly informed cultural assumptions.

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3.6. CRITIQUES OF RESTORATIVE JUSTICE The relationship between restorative justice and the wider criminal justice system remains a central issue in implementing restorative practices (Dignan, 1999; Braithwaite, 2002). As has been the case in England and Wales securing referrals has been an enduring problem and as a consequence many initiatives have remained on the boundaries of criminal justice, both in terms of low referrals and the relatively minor nature of the cases being referred (Miers et al., 2001). This has often left restorative justice as a marginal, irregular and highly localised activity (Dignan & Lowey, 2000). It also creates a situation where programmes are reliant upon other criminal justice organisations such as the police, prosecution service, courts or probation and the prison service for appropriate referrals. Very often these organisations may not share a restorative justice philosophy, make have different priorities or simply may not have a sufficient framework in place for such programmes to work. The referral problem raises further difficulties for evaluation on the effectiveness of restorative interventions as it introduces elements of bias and self-selection (Hoyle & Young, 2002; Crawford & Newburn, 2003). There is also the issue that programmes, which rely on voluntary choice by offenders will run the risk that those who choose to partake are those who are most likely not to re offend. A common experience of restorative justice is that the criminal justice system presents structural, organisational and cultural barriers to it implementation (Walgrave, 2002). There is much debate regarding the merits of different models of restorative justice. However, an understanding of the relationships between the implementation of different models and the mechanics of the societies into which they are being located is rather limited (Maxwell & Morris, 2002). As a consequence of the experiences of restorative justice in other countries, the debate surrounding restorative values and principles is a contested area with many commentators arguing for and against certain standards and ethics (Restorative Justice Consortium, 1998). Walgrave (2002) argues that for restorative justice to realise its full potential it needs to transcend the focus on small crimes, juvenile and first time offenders, and that in order to: actualise its potential fully, a maximinalist version of restorative justice must be developed, with the aim of providing restorative outcomes to a maximum number of crimes in a maximum number of possible situations and contexts, including those whose voluntary agreements are not possible and coercion is needed. (Walgrave, 2002, p. 34)


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Hoyle and Young (2002) state that it is crucial, if restorative justice is to fulfil its potential that its virtues are not exaggerated and that the pitfalls are not ignored. They argue that the greatest tension in restorative justice is to be found in the question of whether it should or should not be integrated into the mainstream state justice system, and if this is the case, to what extent. Some such as Marshall (1999) make the case that restorative justice programmes should be kept separate from mainstream criminal justice because their aims and values are different. Others, including Walgrave (1997, 2002), argue that restorative justice should be an integral part of criminal justice. Any attempts to separate restorative justice from the state is considered to be risky business as it involves rejecting due process protections and other checks and balances that accompany state-administered justice (Roche, 2004). Both critics and advocates of restorative justice have equally expressed concern regarding the limited scope for protecting the rights of defendants in restorative processes (Van Ness, 1999; Kilkelly, 2007). Braithwaite has also highlighted the point that ‘restorative practices can trample rights because of impoverished articulation of procedural safeguards’ (1999, p. 101). According to Hoyle and Young (2002, p. 540) few would argue ‘that there is no legitimate role for the state in restorative justice’. What is of concern within the context of restorative processes and mainstream criminal justice, however, there are issues surrounding the facilitation of conferences, legal advice, proportionality and the influence of state agendas in restorative justice (Ball, 1999; Fionda, 1999; Ball, 2004; Jantzi, 2004; Roche, 2004; Gray, 2005). In terms of who should facilitate conferences there is concern, particularly in the case of those led by the police that it puts too much power into their hands. The fear is that officers will investigate, arrest, judge, and punish someone without there being sufficient legal safeguards in place against the abuse of power (Ashworth, 2001; Kilkelly, 2007). This has further implications in that the police play contradictory roles; insofar as it creates conflict between police and some young people, with the most obvious result that the police will not be considered neutral facilitators (White, 1994). Cunneen (1997) raises a similar point in relation to the situation in Australia, where research evidence has shown that it has been particularly problematic for a police service, which is not seen by indigenous people as legitimate, to try and bring about reintegrative shaming. In the case of New Zealand, Maxwell and Morris (2002) have found that many families have had negative experiences with social work led conferencing. They argue that restorative justice values and those of social work are not reconcilable

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and where conferences have met restorative objectives and reflected restorative values, this has happened despite it taking place in a welfare setting, rather than because of it. Restorative cautioning in some countries is operated through community policing. All facilitators are trained to deliver conferences in a fair way that requires them to follow a script, which charts a path towards a restorative process than is genuine (Maxwell and Morris, 2002). Facilitators are trained to be neutral and the purpose of the conference is to empower the participants and not the police. However, according to observational studies conducted by Young (2001) police facilitators utilised their power in unacceptable ways. Hoyle and Young (2002) also argue that strategies must be devised to protect against facilitators allowing agendas of the agencies within which they are based to dominate the restorative process. Such strategies, they suggest should include monitoring by peers or supervisors to safeguard standards, top up training and independent research into practice. Another possibility is for legal advice and representations to be made available to participants as a check and balance to unfairness or abuses of power. However, similar to issues surrounding facilitation of conferences, the availability of legal advice is a contentious issue within restorative justice. Most people concerned about police and powers of prosecution are in favour of a legal system that promotes fairness and equality. However, some restorative justice advocates such as Wright (1999) do not agree with lawyers or legal representatives having a role in the restorative justice process or at the very least if there is involvement, that it is severely restricted. The fear lies in the perception that lawyers will monopolise the process, affect the offender taking responsibility for the offence and not be in the interest of the parties (Crawford & Newburn, 2003). Despite this Hoyle and Young (2002) contend that if restorative justice is to be used effectively to sentence people, then legal representation should be encouraged, otherwise if it’s not made subject to state scrutiny it will remain outside the rule of law. In many countries there is no requirement for young people who are offered a warning or reprimand to have access to legal advice (Crawford & Newburn, 2002; O’dwyer, 2006; Kilkelly, 2006, 2007). Similarly, offenders who are given referral orders by the courts will rarely be legally represented in the dealing with youth offender panels (Gelsthorpe & Morris, 2002). Furthermore, support for offenders having legal representation during a conference or other restorative process has been met with hostility (Fionda, 1999).


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Ball (1999) argues in her article on the impact of the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999 that such legislation is not in compliance with the European Convention on Human Rights in terms of supplying a lawyer at each stage of the criminal justice process, with free legal assistance where necessary. However, as Crawford and Newburn (2002) argue there is no legal aid available for panels so this change has little impact in practice. In addition to concerns regarding the facilitation of conferences and the availability of legal representation, the issue of offender reparation arrangements can have a disproportionate effect on restorative justice processes (Hudson, 2003). Just Desert theories are concerned that the influence of victims or the wider community could result in disproportionate reparation agreements (Crawford & Newburn, 2003). For these theorists it is important that the punishment should always be proportionate to the offence, bearing in mind the seriousness of the harm and responsibility (Von Hirsch, 1993). Fears over such agreements might be ignored if restorative justice was being used only for diverting minor cases from court, but the fact that reparation is part of a referral order, the nature of it as a form sentencing cannot be ignored (Hoyle & Young, 2002). Cavadino and Dignan (1998, p. 351), as advocates of restorative justice, recognise the need for these considerations to be taken into account when responding to an offence; ‘the protection of human rights of potential victims via crime reduction gives us the ‘general justification’ for having a system of punishment; while the desirability of conveying correct moral messages about relative wrongfulness of different actions that affect human rights argues for a general principle of proportionality in the amount of punishment imposed on individual offenders’. However, they also contend that proportionality does not need to be rigid and can give way at times to other aims such as restoration of the victim. This model allows for reparation agreement to be of a material and symbolic nature and allows victims play a role in the decision-making process regarding reparation (Cavadino & Dignan, 1998). Morris and Maxwell (2002) argue that proportionality may be better thought of as a form of bounding mechanism that limits the scope of restorative outcomes through maximum or upper limits. Nonetheless, others theorists such as Braithwaite and Petit (1990), hold the view that restorative justice and proportionality are incompatible and they have explicitly developed theories of reintegrative shaming and restorative justice in opposition to the just deserts model. According to Hoyle and

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Young (2002) and Crawford and Newburn (2003), restorative justice cannot be judged by levels of proportionality alone but rather reflect core values of restorative justice including mutual respect and empowerment. Offenders should not be asked to take part in acts as part of reparation agreements that degrade or cause stigma to them. The infamous example from Canberra restorative conferencing of participants agreeing to wear a t-shirt printed ‘I am a thief ’ contradicts the fundamental principle and values of restorative justice (Newburn, 2007). The enabling role of the state, in which it provides legal frameworks for restorative justice alternatives and structures to transfer a certain level of responsibility to communities for addressing wrongdoing, constitutes one of the most significant roles for restorative justice (Jantzi, 2004). The state operates in a number of capacities including resourcer, implementer, guarantor of quality practice and often time as offending party. The incorporation of restorative justice as part of mainstream criminal justice attracts concerns about state control and the limited nature of community involvement (Dignan, 2000). There is nothing wrong with the state shaping the agenda of restorative justice but in the context of local and individualised justice, the process must be safe and accountable to protect the rights of all participants (Hoyle & Young, 2002). The issue of accountability is of particular significance in any process that claims to change behaviour and to facilitate agreements between people whom in ordinary circumstances may not get on (Roche, 2004; Cook, 2006). As a been alluded to in earlier sections, an institutionalised response to criminal offences requires some level of input from criminal justice agencies, otherwise purely community based schemes with no statutory basis receive only a small amount of non-serious referrals (Hudson, 2003). If there is not a public dimension to the response to offending, providing legitimacy to the criminal justice process, it runs the risk of becoming vigilantism more than criminal law (Hoyle & Young, 2002; Johnstone & Van Ness, 2007). Furthermore, courts are required for offenders who do not plead guilty and who do not wish to accept the outcome proposed by other parties during a restorative intervention (Jantzi, 2004). Moreover, considerable tensions in the relationship between restorative justice and established systems of criminal justice are clearly detectable. When restorative justice is included into mainstream criminal justice, as is the case in many countries it must coincide with the general aims of the criminal justice system. In general the current managerialist thinking behind restorative policies can be seen in the establishment of the Youth Justice


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Services and Youth Offending teams and these have been expressed in terms of a speeding up of the process of youth justice, in order to reduce delays, the risk of re-offending and to meet the needs of the victim (Ball, 1999; Fionda, 1999; Gelsthorpe & Morris, 2002; Gray, 2005; Zernova, 2007). Moreover, as Dignan’s (2000) research demonstrates, the Youth Justice Pilot Projects may have the opposite effect on victims and diminish the prospects for them to receive direct reparation or take part in mediation. This is an issue of huge concern to many advocates of restorative justice who recognise that any attempt to bring together all parties affected an offence takes time and preparation (Crawford & Newburn, 2003; O’dwyer, 2006; Lalor, de Roíste, & Devlin, 2007). Often victims may not be prepared to meet offenders until some time has elapsed. Meetings which are convened before allowing for time to elapse and healing to begin is not conducive to achieving a fully restorative outcome for all parties involved (Hudson, 2003; Field, 2007). Hoyle and Young (2002) argue that for state to effectively administer restorative justice processes there needs to be a balance between holding a meeting, to ensure that people’s memories have not faded but also to allow adequate time for the co-ordinator to prepare all participants sufficiently. If the emphasis remains on fast tracking, co-ordinators are under pressure to ‘deliver justice’ as quickly as possible and the balance is put into jeopardy (Fergusson, 2007). According to various commentators, these tensions are unsurprising in the context of the mix of criminal justice aims in England and Wales (Ball, 1999; Dignan, 1999; Fionda, 1999; Gelsthorpe & Morris, 2000; Brown 2005). However, many would argue that it is better for restorative justice advocates to seek to engage with and transform certain aspects of established criminal justice, at least in the short term than to insist on an independent and marginalised setting for restorative interventions (Hoyle & Young, 2002; Crawford & Newburn, 2003; Hudson, 2003; Jantzi, 2004). A number of difficulties at both the practical and theoretical level where highlighted in reconciling tensions between models. However, it is argued that the inherent differences and potential difficulties do not prevent them from being reconciled. In short it is contended that restorative justice and criminal justice, whilst they may be competing paradigms they are not as some commentators suggest irreconcilable (Walgrave, 2002; von Hirsch et al., 2003; Zehr & Toews, 2004). It is acknowledged, however, that given the level of conflict and debate that further integration of restorative forms of justice is far from being without difficulties and complexities. If restorative justice is to be

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meaningful and effective, there are a number of tensions that need to be resolved. As Hudson (2003) has argued that the key to reconciling the problems and possibilities of restorative justice lies in creative consideration of its relationship to formal law. Outstanding problems of how to deal with recalcitrant offenders; how to ensure that restorative procedures are not seen as second class justice; how to balance expressive and instrumental functions of justice; and above all, how to ensure that the voice of any party does not become submerged in an emergent unitary consensus all turn on the relationship between discursive processes of restorative approaches and role of formal law in modern societies in relation to defining relationships and allocating rights. Furthermore as evaluations and research studies on the effectiveness of restorative justice processes have shown there is a great need further research. Particularly in identifying why restorative justice works in reducing reoffending and providing long term reintegrative results. These issues stress the point that it is virtually impossible to understand both the possibilities and limitations of restorative justice responses without engaging in political, philosophical and practical debates regarding both the meaning of restorative justice and the role of victims, offenders and communities in the process (Brownlee, 2003; McAlinden, 2007). In the case of State adoption of restorative justice as a response to young people and crime there is much to be learned and observed from taking stock of the difficulties in defining restorative justice and its administration as part of mainstream criminal justice. Furthermore, this combined with the four key stages outlined by Van Ness and Strong (1998) of encounter, reparation and reintegration will give focus and strength to the empirical research findings presented later in the thesis on the emergence of restorative justice practices. This chapter presents an overview of restorative justice. It will set out the definitions and principles of restorative justice. It discusses the myths and realities of restorative from the perspective of Braithwaite and Daly. The chapter further develops understanding of restorative justice by introducing a practitioner’s perspective and using this to further critique Braithwaite’s theory of ‘Reintegrative Shaming’. This is achieved by applying Tomkins’ ‘Affect Theory’ and Nathanson’s ‘Compass of Shame’ to Braithwaite’s own understanding of Braithwaite’s ‘Reintegrative Shaming’. By critiquing Braithwaite’s understanding of ‘Reintegrative Shaming’ through the practitioners perspective the chapter provided a fuller understanding of the potential for restorative justice to provide a meaningful framework of mediation in policy and practice.


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3.7. RESTORATIVE JUSTICE AND CIVIL SOCIETY This section will examine the emergence and influence of the restorative justice movement as a bridge between communities, civil society and the state. The section will be divided into a number of sections, each reflecting the emergence of a movement dedicated to the promotion of restorative justice as a vehicle for a holistic form of community-based justice in Ireland. The section covers the history, scope, and philosophical-political background of the restorative justice movement. This potential is demonstrated in the restorative movement’s challenge to understandings of failed punitive approaches, and through its socially redemptive alternative which emphasises collective responsibility for crime amongst all of the community. We will also examine the international background to restorative justice, and its theoretical understandings, with a focus on key theorists such as Strang and Braithwaite, amongst others. It will examine salient issues that underpin social justice and social control in Ireland, including the potential impacts of restorative justice policy and practice for the wider community and the state. Restorative justice has become the slogan of a global social movement y and a profoundly influential social movement throughout the world. (Braithwaite, 1996, pp. 23–24)

The literature on social movements and civil society has produced little analysis of the links between communities, civil society and the state in the area of justice. This section will address that gap, bridging in the process what has been described as ‘two of the ‘‘hottest’’ but inchoate topics in social sciences-civil society and restorative justice’ (Strang & Braithwaite, 2001, p. 1). Moreover, the pursuit of forms of restored justice by a civil society was at the heart of Enlightenment thinking, and remains central to the rights based societies of the contemporary era. In order to develop understandings of these themes further, the section will outline the processes of restorative justice practice within the context of civil society, itself a ‘contested’ field, according to Geoghegan and Powell (in O´ Broin & Kirby, 2009, p. 95). One of the key issues at the heart of this debate is the acceptance of ‘justice’ as a salient issue within the rubric of ‘community’, whether it is in the context of development or cultural expression. Furthermore, as Geoghegan and Powell and also Kieran Allen (2000, 2007) have argued, any debate about justice in the community must first acknowledge the impact of social inequality on all levels of society in recent years. For Allen, the networks of power which underpin levels of privilege and inequality in

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society pervade all levels of life in contemporary society, and create a justice dichotomy for many left ‘outside the tent’ of such power elites. This body of criticism has tended to incorporate a critique of ‘social partnership’ as a contributory element to societal inequity and injustice. Nonetheless, this section will highlight both the benefits and difficulties which emerge from a partnership approach to restorative justice policy and practice in the community. In the main, the relationship between civil society and justice in the community can be seen as one which has been embedded in a community oriented move towards restoration, as opposed to the legal system’s overriding concern for retribution. We can locate this process of community healing within the bounds of civil society by establishing which networks are working in the field and by identifying the outcomes of the interactions between civil society groups and the agencies of the state. Further understandings of the social, cultural and legal outcomes of the mobilisation of the various elements of the restorative justice movement can then be established. As stated earlier, the conceptualisation of ‘civil society’ is itself contested. Therefore, the four contemporary understandings of ‘civil society’ set out by Scholte (2007, p. 16) will be applied to the restorative justice movement here. These understandings, which are congruent with the key principles of restorative practices, include: (i) the ‘quality of human collectivity’, based on tolerance, trust and nonviolence (ii) a ‘political space, an arena where citizens congregate to deliberate’ (iii) the ‘sum total of associational life within a given human collectivity’ (iv) ‘third sector non-governmental organisations (NGOs)’ (Scholte, 2007, p. 16). The restorative element in traditional understandings of the relationship between justice and civil society can be traced back through history. Early Celtic law contained elements of social restoration. The following quote from the eminent Gaelic scholar Eoin MacNeill sets out an understanding of the communal and restorative elements contained in early Celtic social regulations, which were justice based, as opposed to Saxon regulation, which located law and punishment within the context of monarchical rule: We have evidence that Irish Law worked well, that it produced among the common people a feeling of satisfaction with its operation and with its measure of justice and peace it brought into their lives. (MacNeill, 1935, p. 151)


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Brehon Law also contained a balance between the sometime competing aims of ‘law’ and ‘justice’, for both victim and offender, in the areas of compensation and redress, which could be negotiated. According to the ancient law text An Crı´th Gablach, laws could be interpreted according to the understanding of the crime and the rank of those involved, such as royalty, craftsmen and the fı´lı´ or court poets. This represented the initial involvement of the wider population in law in ancient Ireland, which recognised up to seven ranks within its civil society, distinguishing Brehon Law from its more rigid Saxon counterpart (ibid). Restorative Justice is a distinct philosophy of justice, which focuses on making amends for harm done (Wright, 1999; Edgar & Newell, 2006). Essentially, restorative justice fulfils the basic requirements of the ‘social contract’ which in the philosophies of Hobbes and Rousseau forms the basis of civil society.

3.8. COMMUNITY BASED RESTORATION The practical aim of restorative justice is to consider the impact on victims and others involved, be they family, friends, peers or members of the wider community (Sharpe, 1998). It also endeavours to explore the impact upon the community and implicitly seeks to limit the role of legal professionals. Advocating Christie’s call ‘let’s have as few experts as we dare’ (1977, p. 12), restorative justice prefers to empower victims, offenders, family members and others as partners in the justice process. According to Crawford and Newburn (2003, p. 22): These are the new stakeholders of a revised vision of justice, which seeks to recognise and bring into play, through their active involvement, a broader conceptualisation of the appropriate key actors in dispute processing and resolution.

Therefore restorative justice relocates authority in responses to crime away from the state to stakeholders themselves who are afforded the maximum degree of control over deliberation and decision-making (Hudson, 2003). In many cases, the relocation of authority from the state to the community is an issue. Secondly, the importance of participatory and deliberative processes emphasises the value of participation, empowerment, communication, dialogue and negotiated agreements. Informal environments in which stakeholders are comfortable are conducive to good communication between parties. At the heart of the restorative justice philosophy lies a concern with a particular mode of participatory conflict

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resolution that centres on consensus building through a problem solving approach to crime that is grounded in local knowledge and local capacity. Restorative processes emphasise the importance of offender and victim participation- choice and control in the process of face-to-face encounters and decision-making. Restoring a sense of control to the central parties is a key aspect of the restorative process (Wright, 1999). One intended consequence of party-centred control and participation is to restore responsibility to participants, in the belief that this will encourage offenders to be more accountable for their actions and to encourage others to take responsibility for ensuring the successful implementation of any agreement reached (Morris & Maxwell, 2002). Discussing the consequences of offences is seen to be a more powerful way of communicating the gravity of their offence to offenders in a way that brings home the impact on victims (Morris, 2002). It is believed that a process that treats people with respect and encourages their empowerment is more legitimate in the eyes of those participating. Furthermore that it encourages a general respect for the law and understanding of the consequences of individual action on others (McCold, 2001). Community based restorative justice programmes encourage participation, empowerment, communication, dialogue and negotiated agreements between parties. Thirdly, restorative justice maintains and appeals to particular restorative outcomes or resolutions. Repairing the harm caused by the crime to all of those directly and indirectly affected is the ultimate aim of restorative interventions. Reparation may be symbolic as well as material, the intention being that outcomes should seek to heal relationships (Braithwaite, 1998). In practice, these often include verbal or written apologies, compensation or direct reparation to the victim for the harm and indirect reparation to the community, which may take a variety of forms (Hudson, 2002). It is suggested that restorative outcomes should be flexible and party centred as well as problem-oriented (Johnstone, 2002). Restorative practices have been expanding over the past thirty years, and as a result a range of approaches have been applied to different problems including family relationships, school bullying, training programmes, industrial relations and complaints against police in addition to all types of crime. However the range of practices and programmes of restorative justice are too diverse for there to be an agreed definition (Daly, 2002). Whilst some place emphasis on core values and principles, others focus on aims and outcomes or make reference to specific programmes or practices (Hoyle & Young, 2002; Hudson, 2003). Despite this difficulty it’s widely


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accepted that restorative justice is a face-to-face process that involves offenders, victims, their representatives and representatives of the community coming together to agree a response to a crime (Zehr, 1990; Bazemore & Walgrave, 1999; Braithwaite, 1999).

3.9. THE RESTORATIVE JUSTICE MOVEMENT The restorative justice movement has its roots in the international movements which have shaped understandings of restorative justice for over thirty years. The inception of the modern restorative justice movement can be found within the civil rights and women’s movements of the 1960s. The U.S. civil rights movement was, in their view, partially rooted in critiques of institutional racism in the American justice system. This racial critique also framed their arguments around the disproportionate imprisonment of African-Americans and other minority groups, such as Native Americans. Campaigns for prisoners’ rights and alternatives to imprisonment can also be traced back to the ‘new left’ era. In the U.S., in addition, challenges to unfair justice systems occurred in other jurisdictions, including Australia, Canada, New Zealand, and South Africa. The women’s movement also provided an important focus on crimes of violence against women, which argued for better alternatives in justice. According to Daly and Immarigeon (1998) ‘feminist organising, and feminist groups were among the first to call attention to the mistreatment of victims in the criminal justice process’ and prisoners’ rights campaigns. These early advocates in the restorative justice movement mobilised around problems for society emanating from an over-reliance on prisons alongside the lack of a voice for victims in the justice process. Daly and Immarigeon (ibid) also outline the various kinds of initatives which gave rise to the wider mobilisation of the restorative justice movement. These included the following initatives which empowered victims and communities including: Prisoner Rights and Alternatives to Prisons; Conflict Resolution; Victim-Offender Reconciliation Programs (VORPs); Victim-Offender Mediation (VOMs); Victim Advocacy; Family Group Conferences/the ‘Wagga’ Model (FGCs); Sentencing Circles; Victim Impact Panels (originally established by Mothers against Drunk Driving or MADD) (ibid). As with many of the new left movement that emerged from the counterculture, research and academic inquiry into justice alternatives ran in parallel (or followed local initatives) with social movement activism in the pursuit of alternatives to existing justice system practices was academic

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research and theories, including the following list of elements, which we have adapted from Daly and Immarigeon’s (1998) study on Restorative Justice movement groupings.

3.10. ELEMENTS OF THE RESTORATIVE JUSTICE MOVEMENT (i) Informalism: Abel (1982), Harrington (1985), Henry (1983), Matthews (1988), Merry and Milner (1993), Pavlich (1996) have all sought to address the dichotomy between seeking justice through formal processes in contrast with highlighting the potential of semi- formal of informal community justice processes. (ii) Abolitionism: From the 1970s to the 1990s criminologists in Europe (Mathieson, 1974; Bianchi & Van Swaaningen, 1986; Christie, 1992) called for the abolition or reduction in the use of punitive measures. They argue that restorative justice initiatives such as court diversions and mediation conferencing can be used as alternatives to punitiveness. (iii) Reintegrativism: John Braithwaite (1989) argues that ‘reintegrative shaming’ can be used as an integrative response to crime. His analysis highlights the benefits of informal methods of justice. (iv) Community-Psychology: The ‘Compass of Shame’ and Tompkin’s ‘Affect Theory’ have been applied to Braithwaite’s theories to create a fuller understanding of the potential of restorative justice from the community perspective (Kenny, 2010; Leonard & Kenny, 2010). (v) Feminism: Gilligan (1982) Harris (1987) and Heidensohn (1986) have applied concepts of ‘care’ and ‘justice’ as an ethical critique of the patriarchal justice system according to Pepinsky and Quinney (1991). (vi) Peacemaking Criminology: is a criminology that seeks to alleviate suffering and thereby reduce crime. Peacemaking criminology is framed by various philosophies such as New Age spiritualism and feminism. For peacemaking criminologists, crime and criminal justice are linked in their connection to violence, and peacemaking criminology seeks to reduce of both suffering and crime in order to create a holistic form of justice. (vii) Philosophical Approaches: Braithwaite and Petit (1990), Cragg (1992), and Fatic (1995) have framed philosophical arguments for alternatives to justice. Braithwaite and Petit’s (1990) Ashworth and von Hirsch,


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and Pettit and Braithwaite critique traditional redistributive justice by forwarding versions of a classical ‘republican’ justice. The republican perspective has been the subject of an ecological analysis by Barry (2009). (viii) Pastoralism and traditionalism: The pastoral approach is prevalent in many countries. Restorative justice combines Christian and indigenous traditions, according to Mackey, Van Ness and Strong, and Zehr, Boers (1992), Burnside and Baker (1994), and Consedine (1995). Adapted from Daly and Immarigeon (1998) In order to better understand the potential of civil society as an element of the criminal justice system through the activities of the restorative justice movement, we must first outline the basis of civil society as it operates in the community. Civil society as a sector in society includes a diverse range of actors ranging from trade unions, local development agencies, business interests, advocates and academics and media interests. These diverse groupings compete with each other, and vie for the support from of the local or national government, who create improved conditions or provide funding for most agencies active in the sector. In addition, the civil society sector incorporates a range of rights-based non-governmental organisations (NGOs) and social movements, including social justice groups, women’s rights groups and ethnic and equality advocates. All of these work within the context of an engaged civil society sector that had been given some access to power through their links with the state. This access in turn created some leverage for those stakeholders who were denied equal access to the state that in time has come to be dominated by the key players in the development of economic growth represented by the state, trade unions and business lobby. One offshoot of this emphasis on growth creation was the creation of a ‘two-tier’ society with a dichotomy between economic players and those who worked to highlight non-economic issues. Therefore, it must be recognised that those advocating for restorative justice had to operate within this dichotomous socio-political culture. Nonetheless, as players within the realm of civil society, those advocating for restorative justice have had some degree of success through the introduction of the concept as an aspect of justice policy at both the institutional and community levels. Essentially, a restorative justice movement can be said to exist in many counties, based on civil society groupings which are linked through various networks of civil society governance, both nationally and globally. This movement is mobilised through the four elements of civil society outlined

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above. Although lacking the counter-hegemonic basis of other civil society movements, the restorative justice movement is in many ways representative of a radical approach to grassroots governance based on a conceptualisation of justice which is embedded in the community. Within this public space, existing notions of punitiveness are challenged in a manner which promotes collective responsibility and inclusive deliberation. The mediation processes of restorative practice can be applied to individual, group or community issues, and can be extended out to provide a wider extent of engagement by concerned parties. By providing this extensive and collective range of community-based mediation, the restorative justice movement can address the provision of justice within the parameters of local discourse and situational habitus. Stenson and Lea (2007) examine the manner in which movements representing non-state governance from below work with and then against the State through different relationships in civil society. For instance, Civil society ‘with the state’ is presented as follows: ‘Private welfare, private security, neighbourhood activism, voluntary associations, restorative justice, the courts, NGOs and private commercial regulation’ (Stenson & Lea, 2007, pp. 9–27). The benefits for victims and offenders who engage in restorative justice processes may out weight those offered by more traditional methods, by providing a shared or community based platform for dealing with crime and its private and public outcomes such as pain, remorse and guilt. Firstly victims are given the opportunity to meet the offender and relate to him or her of their version of events and how the offence has affected them. Meeting with the offender also gives the victim the opportunity to understand the reason for the offence and perhaps realise that they were not singled out. The meeting may also empower them to overcome worries about possible re-victimisation. Research has shown victims are empowered through restorative justice and are satisfied by receiving an apology, reparation for the harm caused and an assurance that there will not be a reoccurrence. The community, who can be said to have failed the offender as much as the victim from a Durkheimian or ‘anomic’ perspective, can also partake in a community based restoration process. Restorative conferences provide the offender with the opportunity to take responsibility and account for there actions. The restorative approach empowers them to express genuine remorse, to apologise directly to the victim and make some form of reparation financial or otherwise. It further empowers offenders to address underlying problems, which they may be having, and provides them with the opportunity to work with their parents and authorities to fully integrate themselves back into society. Restorative


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Justice may provide the Criminal Justice system with an alternative means of dealing with crime control across society, and even within a wider political context, such as post-conflict mediation. However in some states it is only legal at present to deal with matters relating to juvenile crime through convening restorative events. The benefit of restorative justice for society and the criminal justice system is that is has implications for social control in the form of reducing future rates of crime. The juvenile offenders of today are the major criminals of tomorrow. For offenders, restoring a sense of security and empowerment can rebuild there confidence in finding employment, achieving educational success, sporting success and of feeling confident and secure in the future. The restorative justice philosophy involves all of those affected by the criminal behaviour be they victims, offenders, the families involved or the wider community all play their part in resolving the issues that flow from the offending. As Braithwaite contends, the restorative justice process empowers all parties to restore the deliberative control of justice by its citizens (Braithwaite, citied in Johnstone et al., 2003, p. 87). The remaining terms of the agreement came about as a result of dialogue, interaction and agreement between all parties. The community may acknowledge its own failings, and address the best outcome through mediation. Attempts at community mediation through conferencing have may been undertaken over time as part of the dialogue about disputes in the community or between individual communities and the state or multinationals, and these may have had mixed results. However, the process can empower the community, who can present their shared grievance in a public forum to key actors from the state or multinationals. With such processes embedded in civil society, the third sector could provide a vital bridge between concerned communities and the de-legitimised state. Wheeldon (2009) has outlined concerns about the co-optation of restorative justice movement within the wider socio-political system of justice due to the bridging role restorative justice can play through the links created between civil society and agencies of the state. However, the pitfalls of co-optation can be avoided through the development of a framework which allows the ‘third sector’ groups of civil society to work with the community orientated projects of state justice agencies such as community based policing. Once established this creates a viable role for civil society groups within the criminal justice system, while also providing a forum for the presentation of community grievances. Essentially, the establishment of such civil society frameworks provides community activists with a degree of access to

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the ‘political opportunity structures’ of both the justice system and the wider political frameworks surrounding any dispute. Restorative community conferencing can subsequently be seen to represent a ‘political mediation model’ based on ‘transformative mediation’ (Bush & Folger, 1994).

3.11. COMMUNITY POLICING AND COMMUNITY JUSTICE Restorative Justice allows for civil society involvement and community participation in the policing of local disputes. The restorative justice movement provides an opportunity to achieve a fairer and more satisfactory criminal justice system for all members of society. In this way, the ‘gaps’ which exist in the provision of justice through civil society participation in alternative forms of policing through conferencing is established. Restorative Justice principles are gradually gaining acceptance as viable alternatives to sentencing and as a community or individual mediation process in the community. There is a growing acknowledgement among professionals and academics that society needs to develop other responses to crime. The Restorative Justice process has much to offer by way of community policing initatives as it centres on the greater use of non custodial sentences will bring about changes not only in the community’s relationship with the law but will have significant implications for improved and deeper methods of providing social justice. Community policing is a significant contributor to the engendering of ‘social capital’, or the commonly-held values which underpin community spirit. Without the input of community policing, communities cannot function, and citizens can become alienated as fear of crime (both real and psychological) diminishes the fabric of social life. In a study on ‘Community Attitudes to policing in small and medium towns’ in the United States by Cardarelli, McDevitt, and Baum (1998), some key findings were presented. These included an understanding of the importance and complexity of involving the community in ‘the decision-making processes associated with community policing’ (ibid, p. 397). The authors feel that the roundtable meetings on Crime Prevention and Community Safety was a positive example of community involvement in community policing processes, and recommend an extension of such meetings, to increase interaction and feedback between relevant parties.


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The second issue which emerged from study by Cardarelli, McDevitt and Baum was the best manner in which to sustain community involvement with the interactive decision-making processes of community policing (ibid, p. 397). From the authors’ perspective, there is a need to build on and develop community engagement with community policing frameworks, to build the mutual frameworks that can be beneficial to both communities and the police. In the authors’ view, these developments need to go beyond existing community-watch programmes, and incorporate individual and collective police officers in community activities such as youth mentoring and community conferencing, which are outlined as follows:

3.12. RESILIENT COMMUNITIES In the authors’ view, mentoring plays a key role in youth intervention and the prevention of engagement with crime and subsequent recidivism. The authors have been involved in various sporting ventures for young people and are of the view that mentoring which provides access to participation in key areas such as sports or education provide the most valuable form of support for young people, that of developing ‘resilience’. Their studies on ‘resiliency building through participation in education and sports’ has provided the following findings. Goals can be achieved through participation of marginalised youth in sports. However, our studies demonstrate the significance of the context and structures of such participation, indicating the importance of programmes supported by institutions such as the police and local colleges or universities. Participation in a sports-based programme increases resilience due to the creation of an action and skills competency, and can be linked to the basic concepts of good health promotion through activity and fitness. The creation of understandings about the importance of teamwork through sport is also an aspect of action competence, allowing the child to make choices about individual or collective action through sporting activity. Selfesteem is created through increased skills competency, interaction with team-mates, and role playing. Young people benefit from having a specific role and title, which is provided by such participation. Participation in relevant programmes can develop a child’s personal and communal identity, and leads to increased self-esteem, empowerment, and individual development, enhance fitness and competency, and importantly, increase the child’s experience of fun in a

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good environment. Access as a builder of individual resiliency and social capital in the following areas: (i) Enhancing what we have termed Social Credit Reservoirs (SCRs) or pools of expertise within communities that can be shared within that community. (ii) Providing what we have termed Social Credit Incentives (SCIs) or the incentivising of community participation in social capital or community development projects. Such measures could be supplemented by a ‘Living Wage’ rather than welfare, in order to foster innovation within the community. Community engagement plays a part in preventing the alienation and exclusion which can lead to drug and alcohol abuse, criminal behaviour or suicide in young people and the development of learning skills by young people who may lack other external supports. Rates of disadvantage are addressed by increasing civic partnerships between colleges, local schools and marginal communities in both urban and rural settings is a significant benefit to the community. Participation in sports or educational projects ultimately increases social integration in an age of cultural diversity. Our cumulative findings on resilient communities are as follows: Community policing must form the key aspect of justice policy. Authentic forms of community policing are necessary to underpin community faith in the justice system, and are crucial to the formation of significant levels of social capital required to maintain a ‘sense of community’, particularly in marginal communities. Restorative justice is beneficial to both victims and offenders, and is therefore subsequently beneficial to all of society. Community-orientated policing, which is led by the community in co-operation with the police provide a model for future restorative justice policy and practice. Youth Justice and Mentoring provides young people with the prerequisite levels of resilience needed to deal with the challenges of contemporary life. Further resources are required to fund extensive access and participation programmes for marginal youth, and these programmes benefit from the involvement of institutions such as universities and the police. This requirement is particularly relevant for marginalised communities. Previous works by the authors have produced studies analysing sustainable levels of ‘community or rural sentiment’ (Leonard, 2008; Leonard & Barry, 2009) which can be mobilised in response to perceived or real threats facing the community, and this is also the case for communities dealing with crime


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alongside an authentically community-orientated police force. In order to enhance and foster community orientated and sustainable forms of justice, policing should remain a community-based. These restorative measures improve the context of policing and crime prevention in the community and enhance the processes of justice across society. Through rehabilitation and reintegration rather than traditional punitive measures offenders come to realise that there is nothing to be gained from leading a life or crime. Ultimately, as an alternative system of policing the community, restorative justice provides a significant alternative based on concepts of sustainable justice rather than short-term punitiveness: History is teaching us every day that if we continue to operate a criminal justice system oriented principally towards punishment based on vengeance, and continue to reap its bitter harvest of high crime rates, fear and insecurity. The time for change is now if we are to bequeath the 21st century a criminal justice system worthy of its name. (Consedine, 1999, p. 196)

3.13. SUMMARY The restorative justice movement has been demonstrated to have an impact in the areas of community development, civil society, governmentality and policy delivery. These impacts have been demonstrated to occur on at least two levels; the first is at the level of extending the remit of the state through civil society’s engagement with community policing in the form of the various conferencing initatives outlined in this article. The second impact reflects a more contentious outcome. Such contention is demonstrated through the capacity of restorative justice to serve as a facilitator of community empowerment which strengthens civil society and third sector engagement, creating a form of social capital which has true implications for the establishment of a broader and more inclusive justice base across society. The mobilisation of any social movement has limited potential to secure complete social or cultural change in the area of contention chosen by its advocates as the social issue requiring attention. And so it is with the restorative justice movement worldwide. No movement can completely restore the losses incurred as a result of any injustice which occurs. Nonetheless, this section demonstrates that the restorative justice movement can contribute to an active civil society by creating the conditions whereby

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certain outcomes which are compatible with the movement’s aims are achieved. These outcomes include the following: The amelioration of grief and suffering in the community. The creation of networks which facilitate dialogue between opposing parties. The strengthening of civil society through the facilitation of processes of engagement with the various elements of the justice system such as the police, courts and welfare services. The extension of the concept of justice beyond that of punishment, creating a deeper form of sustainable justice throughout society. The creation of ‘sustainable justice’ in society. Moreover, the section demonstrates that the basic philosophies and aims of the restorative justice movement are congruent with the essential basis of civil society set out by Scholte’s (2007, p. 16) civil society orientated criteria of creating public space for discussion, tolerance, associational living, and the engagement of the third sector in civic affairs. Furthermore, the restorative justice movement can provide a bridge between civil society and the justice system through the provision of restorative conferencing in community based disputes. According to Wheeler (2009), ‘The restorative justice project is challenged today by a desire both from within and outside the movement to more fully engage with the criminal justice system’. This section demonstrates that while the risks of co-option are real for the restorative justice movement, the processes of restorative justice hold out a much deeper promise of providing a real alternative to narrow punitive or the cycles of negativity that characterise many social or criminal disputes. In many ways, restorative conferencing provides the type of access to political opportunity structures required by both communities and the state in the pursuit of full mediation and the resolution of publicly held grievances. The section establishes the degree to which restorative conferencing can provide an alternative to disputes about the provision of social justice, whether in areas such as community participation in policing and judication processes, through to the creation of a positive and neutral space for social expression and dialogue on different levels (including protests) through public conferencing. This creation of a ‘political mediation model’ based on ‘transformative mediation’ (Bush & Folger, 1994) addresses many of the points raised by McAdam, Tarrow and Tilly (2001, pp. 139–143) about the ‘possible interactions and outcomes’ that emerge at the end of an episode of contention. This ‘transformation’ (or ‘innovation’ for movement theorists)


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addresses what Bush and Folger (1994) refer to as the ‘destabilising’ of relationships through conflict, transforming relations through processes of mediation and the development of mutual understandings by all parties. The processes of transformative mediation discussed here uses the creation of dialogue (or ‘the communication of claims as opposed to direct confrontation’ according to McAdam et al. (2001, pp. 139–143) as a measure of success, rather than successful attainment of preconceived outcomes which may jeopardise the attainment of full restoration within the community.

CHAPTER 4 SUSTAINABLE POLITICAL ECONOMY

4.1. INTRODUCTION: ENVIRONMENTAL JUSTICE AS SUSTAINABLE JUSTICE This chapter will discuss understandings of forms of sustainable political economy within the context of sustainability in the community. Essentially, it will examine the issues which emerge when a community favours a green economic model within the context of the now largely discredited neo-liberal framework that never valued notions of sustainability, and is now largely in crisis due to the market decline and ‘credit crunch’. In addition, the section will outline the significance of community-based political economy for the development of sustainable forms of justice. A sustainable form of political economy incorporates particular concerns, such as ‘the geographical scope of production for local needs, and the exposing and combating the institutions and power structures that lead to poverty and lack of local control’ (Kennet & Heinemann, 2006, p. 78). Under the neo-liberal system, a dichotomy existed between community development and the dominant, yet ultimately unsustainable, growth-based form of political economy. This dichotomy can be understood through an examination of a sustainable political economy as ‘a discourse which is marked by antipathy to the foundational assumptions of conventional market based economics. Community based opposition to growth and the market is identified along with values of ecological sustainability, social justice, decentralisation and peace’ (Wall, 2006, pp. 201–214). In order to better understand the sustainable political economic model, we must examine the concept of ecological modernisation which has been embraced by neo-liberals as the 111

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dominant form of sustainable development in order to present a more authentic alternative which fully embraces justice as part of its discourse.

4.2. ECOLOGICAL MODERNISATION AS REGULATORY JUSTICE Sustainability issues can be seen as part of a contest between two competing understandings of ecological modernisation – one is a technocratic form of green neo-liberalism, while the other is expressed by a grassroots engagement with green political economy. The most prevalent form of ecological modernisation is that which combines environmental and industrial concerns as a form of sustainable development. The ramifications for those wishing to adhere to green political economic thinking become clear in this process, as ecological modernisation creates a pro-industry rationale which then impacts on the direction of parties in coalition. The influence of grassroots environmentalists on maintaining an adherence to sustainable political economic tenets since the concept was introduced at the Rio ‘Earth Summit’ is considerable. More recently, the impact of the dominant paradigm of ecological modernisation on the UK, United States, Germany and Norway has been analysed to reveal varying degrees of connectedness between environmental movements and ‘core state imperatives’ in these states (Dryzek, Downes, Hunold, Schlosberg, & Hernes, 2001, p. 191). What becomes clear over time is the degree to which local factors in each state influences the impact of ecological modernisation on policy or the ‘subpolitics’ of community movements. Sustainable values and state imperatives reached congruence at various stages of each state’s development of environmental policy frameworks and community movement activism over recent decades. With ecological modernisation either becoming central to wider acceptance of environmental initiatives (in the case of Germany) or becoming part of the ecomodernist versus ecopopulist divide in the case of the United States, where ‘an old fashioned stand-off between economy and environment’ still exists (ibid ). While undoubtedly eco-modernism has provided an outlet for the many competing elements in the community movement arena and has crystallised current understanding of what sustainability means from an economic perspective, these understandings have not been translated into legislation which provides sustainable forms of primarily punitive-based justice systems

Sustainable Political Economy

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for communities when it comes to failed approaches to environmental or criminal justice. Although facilitating policy making at an administrative level and bringing diverse elements of pollution control together under holistic regulatory frameworks, eco-modernism has been criticised for being too inclined towards industry for an ecologically minded concept. This criticism may overlook the necessary role of ecological modernisation in bridging the gap between business and ecology, in the face of the regulatory failure of the 1970s, as it has been the main point of contention between deep green ecologists and environmental agencies and has also affected the structures of Green parties across Europe, many of whom have had to contend with a ‘fundi-realo split’ in their ranks. The global economic crisis that has shaken neo-liberalism provided an opportunity for the community-based sustainability movement to change the direction of the wider political economy of contemporary society. Nonetheless, this is in many ways constrained with the ongoing ‘bailout’ mentality which has seen many governments bail out of Wall Street and the banking sector – itself an injustice. The opportunity to end this failed approach and introduce a more sustainable form of political economy as an alternative was lost. Lawson (2006) has outlined the manner in which exiting models of political economy need to adapt more sustainable concerns to the fore of state policy, seeing a sustainable political economy as something which can be defined as the social science of the interaction between the production, consumption and transfer of goods and services by humans, taken in relation to the physical processes of the ecosystems that support life y It is sobering to consider that non-sustainable economics by definition implies a breakdown of the current system at some point in the future. It is perhaps because of this that there is a tendency by some economics writers to degrade the meaning of the term ‘sustainable’. (Lawson, 2006, pp. 23–36)

The impact of neo-liberalism on ecological modernisation in contemporary neo-liberal society becomes evident when we note the manner in which governments vie to attract transnational corporations (TNCs) for the purpose of job creation. In the event of environmental regulations hampering the operation, they may often be altered or overlooked, and in the easing of conflicts of interests, the public is often caught in a propaganda war over the merits of industrial progress in relation to environmental protection, clearly an unsustainable approach to political economy while also creating ongoing issues around environmental justice and environmental crime.

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This form of community-based discord has become a recurring feature of past environmental conflicts around the world, for instance in the issue of siting toxic dumps or incinerators in areas of high poverty (Rootes & Leonard & Rootes, 2010). A feature of both these campaigns was the conflict between the public relations section of the polluting industry, which was given practically limitless funding to give their viewpoint, and the oppositional efforts of concerned citizens and community groups who had little or no previous expertise and no funding beyond public contributions, creating environmental justice movements from the grassroots while locating many TNCs outside of the law. Ecological modernisation is a discourse which acknowledges the role of the citizen but fails to address the social reality underpinning the politics of environmental protest, a reality which cast the modern protester in the role of challenger to a plethora of social and environmental ills. By promoting a ‘techno-institutional fix’ (Hajer, 1995, p. 32) for the challenges of the environment, ecological modernisation has traditionally come to represent a potential ‘Trojan horse’ for the potential polluter. Many states have followed a neo-liberal path that has subsumed environmental issues, something European Green parties have had difficulty contending with when participating in government (Leonard, 2010). In addition, funding programmes for substantial public relations operations have to overcome incidents of localised hostility. This in an ironic twist has become central to our very understanding of what it is that the environment is, as our definitions are often driven by public relations and media images of ‘the environment’. As a result many community-based movement campaigns have felt the need to fully challenge the concept of industrial progress and have begun to question aspects of industrial development.

4.3. THE PHILOSOPHY OF SUSTAINABLE JUSTICE Sustainable forms of political economy would create frameworks for understanding economic growth and sustainability in a manner which views a ‘very long-term, earth wide, holistic context of reality as a part of nature’ (Kennet & Heinemann, 2006, p. 68). As a discipline, green economics represents a more dynamic and sustainable form of ecological modernisation, one which seeks an innovative method of transforming existing understandings of ‘business as usual’ into ‘nature as usual’ (ibid.). This holistic approach to economic issues seeks to challenge the somewhat


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entrenched paradigms which draw on the liberalism of Adam Smith or John Stuart Mill or the redistributive model of Marx, both of which prioritise human concerns over nature. The consequences of such narrow anthropocentricism are now clear; according to the four Intergovernmental Panel on Climate Change (IPCC) reports (2007), human behaviour is causing climatic change with both human suffering and ecological degradation occurring on a massive scale as a result. In such circumstances, green economics should be seen by all rational actors as the only sane approach to our future planning as a species sharing this planet with other forms of life. For Kennet and Heinemann, the blueprint for green economics incorporates four main areas of concern – ‘eco, intellectual, political and moral’ – with each area representing a significant junction in the process of evolving anthropological–ecological relationships (Kennet & Heinemann, 2006). Drawing on existing concepts such as postmodernism, (eco)feminism and critical theory, green economics recognises the importance of ‘society’ as the fundamental agency of the process of civilisation undertaken by humankind throughout history. From this understanding of the significance of society, an enhanced comprehension of the conjunctions that exist between humankind and nature can be established. For instance, all human endeavour, be it economic, scientific, societal or developmental, occurs within the context of a process of engagement with nature. As postEnlightenment processes have been established on the basis of exploitation for gain (otherwise known as ‘profit’), the foundation of all human interaction since then has evolved from such predispositions and fed into the manipulation of human interaction, be it species, soil or gender based – all is rendered asunder by the ethic of abuse for gain. Therefore, green economics posits ‘fairness, equity and justice’ (ibid.) at its core. While the ethic of profit is central to the Adams/Mill model of liberalism, we can also find a critique of Marx which is indicative of the green economics model. We can examine Enzenberger’s critique of Marx (Benton, 1996), and note his concern with Marx’s idea that environmentalism could ‘take over’ capitalism. This concern seems to be at the basis of Benton’s own critique, when he discusses the significance of the contexts and ‘purpose of labour’, by embracing what we would call ‘stewardship’ over the exploitation of nature. In a metaphysical sense, Benton hints that labour transforms the labourer as well as nature, and both have biological basis through the ‘instrumental transformation process’. Similarly, the processes envisaged through green economics anticipate such transformations, and incorporate these in an inclusive manner which would challenge the

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‘systematic and institutional causes of inequity and poverty’ (ibid.) while addressing ecological degradation. Furthermore, Barry (2007) has argued that the weakest aspect of the ‘triple bottom line’ understanding of sustainable development has been the ‘economic’ dimension. Much of the thinking about the appropriate ‘political economy’ to underpin sustainable development has been either utopian (as in some ‘green’ political views) or ‘business as usual’ approaches (Barry, 2007, pp. 446–464). Barry suggests that ecological modernisation has become the most prevalent model of sustainable development, while arguing further that the desire for economic security should be perceived as an opportunity for a new form of green economics which is more equitable and just. This approach is echoed by Lawson (2006), who envisages a form of economics linked ‘to its ecological foundations’ with a view towards greater equity. True sustainability represents the embracing of nature, as opposed to the centuries-old Enlightenment process of science repressing nature. It has at its root an overall concern with a sense of global co-operation and species ecumenism which go far beyond the compromising elements of ecological modernisation. Where nature was once ‘wild’ and in need of taming, deep green ecology places the environment as the equal or, more fundamentally, a more important entity than humankind. Of course, this places most deep green activists in opposition to the onset of a society enthralled by accelerated over-consumption and environmental degradation in the name of profit. Moreover, while deep green ecologists may have been members of the larger environmental agencies, such as Friends of the Earth and Greenpeace, they have come to reject the bureaucratic nature of such groups, working instead in small clusters of committed activists, protesting about specific environmental problems. In this era of planetary climate change, ecologists now fear for an Earth threatened by the actions of humankind, driven by greed and seemingly unable to separate these processes of expansive development from a culture of environmental degradation. Such fears have been confirmed by the IPCC reports of 2007. It is interesting to look back at the recent history of the United States in relation to the rise of deep green political thought from its basis in the counter-culture movement of the 1970s. Writing in 1975, Bookchin claims Environmentalism does not bring into question the underlying notion of the present society that man must dominate nature; rather it seeks to facilitate that ‘domination y The very notion of domination itself is not brought into question’. Ecology, I would claim, advances a broader conception of nature and of ‘humanity’s relationship


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with the natural world. To my thinking it sees the balance and integrity of the biosphere as an end in itself ’’ (Bookchin, 1975, p. 123). This contrasts greatly with current views on ‘sustainable development’ and places the Earth’s ecosystems on a higher plane with an almost spiritual dimension, to the compromising position offered by ecological modernisation. While undoubtedly radical insofar as advocating a rejection of modern industrial society (and even working to subvert this society), deep green politics is less volatile than left-wing radical groupings as protest movements replace revolutionary cells. This distinction can be used to distinguish ‘environmentalism’ from Ecologism. It is from this perspective that a concept of ecology is developed, one which ‘advances the view that humanity must show a conscious respect for the spontaneity of the natural world’ (Bookchin, 1975, p. 123). In regard to social relations the same writer views ecology as affording ‘a new relationship between humanity and the natural world in which society itself would be conceived as an ecosystem based on unity in diversity, spontaneity and non-hierarchical relationships’ (Bookchin, 1975, p. 133). Competing meanings of environment contend with each other as society grapples with ecological issues on an increasing scale. Environmentalism has many separate meanings but for our purposes a distinction has been made between the type of radical green politics which argues for a complete change in emphasis in humankind’s relationship with its surrounding environment and the type of compromising pro-industrial approach of eco-modernist and sustainable development discourses. This distinction has come to represent the growing alienation that has developed between green political groups and the institutional agencies charged with implementing the bureaucratic and legislative infrastructure which derives from sustainable development, such as ‘the polluter pays principle’ or ‘triple bottom line’. While both would claim to be pro-environment, per se, they remain essentially divided in relation to their theoretical interpretation of whether society can continue to develop as it has done since the Industrial Revolution and whether consumption and pollution levels can be sustained in their current forms. It is from within the tensions of this societal dichotomy that the politics of environmental protest has grown as administrations, already faced with a crisis of legitimacy, are now confronted by sections of the population not necessarily politicised until faced with a nearby environmental crisis. Environmental justice campaigns demonstrate that communities can become politically motivated by a looming environmental crisis, even if economic or legalistic difficulties or even imprisonment results from their resistance to an industrial polluter. This may not mean that community

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protest groups are all green political ideologists, but they take on the mantel of environmental activists, at least for the duration of their protest. Theorists have argued that aspects of radical ecologism are disconnected from political reality, claiming that much of what passes for green politics is based on a form of ‘anti-humanism’ which lacks a rational basis (Bookchin, 1975). It can also be argued that green politics has provided a focus for the type of community-based protest movements that can address the democratic deficit created by over-bureaucratic and hierarchical administrations, at both the global and national levels. By providing an outlet for social protest, deep green environmental movements are addressing the onset of democratic deficit in society. In so doing, green politics has provided a basis for political movement rather than the type of entrenched ideological positions which have emanated from traditional left- or right-wing politics. In other words, the basis for green political protests may not necessarily be a strong belief in green politics. However, the types of protests which have become identified with the environmental movement have at their core not just ecological issues but also a representation of an understanding of the type of expansive capitalism which pits polluting industries against local communities in the name of jobs and profit.

4.4. SOCIAL ECOLOGY AND COMMUNITY JUSTICE Murray Bookchin (1921–2006) was the first of the ‘New Left’ writers to make the link between radical politics and environmental consciousness. His works explored concepts surrounding the basis for environmentally minded, utopian and egalitarian social planning, while his concept of ‘social ecology’ provided a theoretical link between human and ecological frameworks. He was the author of over 20 books, with his collected works including books on ecology, history, politics, philosophy and urban living. He was born in New York, to Russian-Jewish immigrants in 1921. As a child he enrolled in the Communist Youth Movement, joining the Young Pioneers, the communist youth organisation, at the age of nine. Never having the opportunity to attend college, he worked in foundries and as an auto-worker. While so doing, Bookchin also became a union organiser and took part in the great General Motors strike of 1946. He also served in the US Army. His work in factories allowed him to become an organiser for the Congress of Industrial Organizations. As far back as the 1930s, he had broken with


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Stalinism in favour of Trotskyism, working for the periodical Contemporary Issues. Subsequently, he shifted from the Marxism of his youth and became an anarchist. As a newly found anarchist, he participated in the establishment of the Libertarian League in New York during the 1950s. His first book, Our Synthetic Environment, was published in 1962 under the pseudonym Lewis Herber. The book addressed a broad range of ecological issues, and was the first such text of the 1960s to do so (Rachel Carson’s Silent Spring was published later that year). In his early works, Bookchin argued for a decentralised society using alternative energy sources. Throughout his work he developed his concept of ‘social ecology’, stating that the solutions to environmental issues have their basis in human politics. Throughout the counter-culture movements of the 1960s, Bookchin became a pivotal figure in introducing ecological politics to radical groups agitating for change. His works were influential in the emerging politics of the ‘New Left’. Much of Bookchin’s works from this time were anthologised in his book Post-Scarcity Anarchism published in 1971. Throughout the 1970s Bookchin’s writings and lectures influenced the environmental movement throughout the United States and internationally. In 1999, Bookchin broke with anarchic individualism and placed his ideas into the framework of locally based communalism though continued to retain his ideas about the needed decentralisation and localisation of human populations, power/money/influence, agriculture, manufacturing, etc. While living in Vermont, Bookchin worked with the North Vermont Green Party, and served on the Vermont Council for Democracy, until his retirement from politics in 1990. His later works included Remaking Society (1989) and The Murray Bookchin Reader (1997). Bookchin’s legacy was significant, extending across the spectrum of radical politics. He is a primary figure in the fields of green politics, the antiglobalisation movement and the grassroots libertarian movement while influencing alternative thinking on de-industrialisation and urbanism. His works on libertarian municipalism and grassroots democracy influenced the direct action movement of the 1990s, which emerged in campaigns such as ‘Reclaim the Streets’ and the World Trade Organisation (WTO) protests from 1998’s ‘Battle in Seattle’ onwards. While being a key thinker in green politics, he remained skeptical of ‘new age’ mysticism, and was critical of biocentric philosophies such as deep ecology and the biologically deterministic beliefs of sociobiology, contributing to the divisions in the Green political movement during the 1990s. In addition to his political writings, Bookchin wrote extensively on his philosophical ideas, which he called dialectical naturalism. The dialectical

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writings of Hegel, which articulate a developmental philosophy of change and growth, seemed to him to lend themselves to an organic, even ecological approach. In the essay ‘What Is Social Ecology?’ Bookchin summarises the meaning of social ecology as follows: Social ecology is based on the conviction that nearly all of our present ecological problems originate in deep-seated social problems. It follows, from this view, that these ecological problems cannot be understood, let alone solved, without a careful understanding of our existing society and the irrationalities that dominate it. To make this point more concrete: economic, ethnic, cultural, and gender conflicts, among many others, lie at the core of the most serious ecological dislocations we face today – apart, to be sure, from those that are produced by natural catastrophes.

Bookchin’s concept of ‘Social Anarchism’ was a critique of some modern currents of anarchism to which he referred as lifestyle anarchism and which in his view promoted individual gratification instead of revolutionary social change. These included the critique of technology and anti-civilisational views of anarcho-primitivism. Such approaches are not sustainable, and hold out little hope for any enduring form of social or ecological justice. From the 1990s onward, Bookchin was increasingly convinced that the focus of action for change should be at the municipal level. In an interview with Dave Vanek in Harbinger in 2001, he articulated his views in the following way: ‘The overriding problem is to change the structure of society so that people gain power. The best arena to do that is the municipality – the city, town, and village – where we have an opportunity to create a face-toface democracy’. Bookchin introduced the term ‘Libertarian Municipalism’ to describe a system in which libertarian institutions of directly democratic assemblies would oppose and replace the state with a confederation of free municipalities. Libertarian municipalism intends to create a situation in which the two powers – the municipal confederations and the nation-state – cannot co-exist. Its supporters believe it to be the means to achieve a rational society, and its structure becomes the organisation of society. Such an approach would enliven local and regional politics, and could form a more sustainable form of politics, with enhanced community engagement in more inclusive systems of politics and justice. Social Ecology is a coherent radical critique of current social, political and anti-ecological trends. It is a reconstructive, ecological, communitarian and ethical approach to society. Social ecology advocates a reconstructive and transformative outlook on social and environmental issues, and promotes a directly democratic, con-federal politics. As a body of ideas, social ecology envisions a moral economy that moves beyond scarcity and


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hierarchy, towards a world that re-harmonises human communities with the natural world, while celebrating diversity, creativity and freedom. The core beliefs of social ecologists hold that the human potential to play a more creative role in natural and social evolution can be realised, unlocking the creative and communal potential to develop communities free from the curse of crass managerialism, unjust hierarchies, social inequity and ecological degradation. This approach to direct democracy could deliver a sustainable form of justice built on a fair and ethical system of politics and socio-economic planning.

4.5. GREEN THEORY AND SUSTAINABLE JUSTICE ‘Deep green theory’ is a critique of the ethics of ‘deep ecology’ put forward by writers such as Richard Sylvan and David Bennett. Distinctions are made between ‘non-ethical living’, which includes anthropocentric exploitation of the environment, and three ethical positions: ‘shallow’, ‘intermediate’ and ‘deep’ green ethics. Deep green theory develops Arne Naess’s concept of ‘deep ecology’ or ‘ecosophy’ which rejects the anthropocentricism for ecocentric models of living, with human life and ecology co-existing equally. However, deep green theory develops the concepts of deep ecology, incorporating alternative ideological understandings of the possibilities of deep green politics. Such changes emerge from the individual conscience changing of ‘self-realisation’ put forward by Devalls and Sessions, which then can be developed into personal and ultimately communal politics. The central critique of deep green theory to deep ecology centres on the absence of any challenge to existing capitalist structures by the latter. In addition, deep green theorists argue that the absence of a framework to put deep ecological concepts into action lacks a framework. Deep green theory incorporates a political praxis which includes animal rights, anti-globalisation, feminism and anti-capitalism within its activist structures, thereby creating a theoretical ideology for adherents of deep green politics which is absent in the philosophy of deep ecology. Deep green theory allows for a consideration of socialism, which is rejected as anthropocentric in deep ecology. This framework provides space for Murray Bookchin’s concept of ‘eco-socialism’ within the tenets of deep green theory, and provides for a critique of the destructive and exploitative nature of capitalism in areas such as eco-feminism. Sylvan called his own theoretical perspective ‘Deep-Green Theory’ (DGT), making a distinction with the religious and philosophical basis of

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Naess’s deep ecology and DGT’s pragmatic political framework for dealing with existing environmental issues. Distinctions are also made between the personalised basis of deep ecology (based on holism, biospherical egalitarianism and self-realisation) and bringing these concepts into the wider political realm through the DGT activism. This pragmatic perspective allows for the creation of a broad green coalition with pacifists, feminists and anarchists, but one which holds to deep green thinking as its core ideological concept.

4.6. DAVID HARVEY AND SUSTAINABLE JUSTICE For many years, the social geographer David Harvey has argued that academics could not remain objective in the face of urban poverty etc. In his book Social Justice and the City (1973), Harvey outlines why issues of social justice should be as important an issue for urban planners as any other factor, including profit margins. If space is indeed something that is ‘consumed’ then the community has rights in relation to the context of that consumption. As mentioned earlier, with societies becoming more urbanised, the planning of urban spaces becomes an ever more critical aspect of contemporary life, yet its planning and structuring is often left in the hands of corrupt politicians, speculators, developers and the exploitative landlord class. As a result, the speculative development that passes for spatial planning creates cities which are full of squalor, crime and hopelessness. Instead of creating communities which can thrive on creativity and mutuality, modern cities are divided into vapid commercial sectors for designed mindless consumption, inner-city ghettos, soulless suburbs or gated communities which nurture addiction and dependency. Environments are polluted, resources are over-exploited and interaction between humans and nature becomes minimal. Societies built on exploitation, greed and accumulation are clearly unsustainable, as are their grand institutions which have faltered in recent years, including the most major political, economic and religious entities. Harvey sets out this perspective on the injustices inherent in contemporary spatial development as follows: Firstly, we can look upon urbanization (and the lures of city construction and destruction) in terms of the forces of capital accumulation. Capital realizes its own agenda of ‘accumulation for accumulation’s sake, production for production’s sake’ against a background of the technological possibilities it has itself created. Urbanization in the advanced capitalist countries, for example, has not in recent history been about


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sustaining bioregions, ecological complexes, or anything other than sustaining the accumulation of capital. (Harvey, 2000a, 2000b, p. 22)

Therefore, if we accept that all development to date was bound up in the speculative and accumulative ethos associated with capitalism from the Industrial Revolution until the collapse of the international banking system, it follows that a new form of sustainable and just living is required in order to provide a new direction for humanity. From Harvey’s perspective, the current trend towards increased levels of marginalisation and crime, accompanied by the flight of the middle classes from cities into gated communities on the edge of con-urbanised sprawls, is clearly unsustainable. Without doubt, this posits sustainable planning as a key issue in the distribution of justice for future generations, for the environment and for the planet. Harvey also questions the dichotomy which exists between moral, philosophical and scientific field of inquiry. In his view, it is reasonable to expect that all areas of the academic or intellectual disciplines should incorporate social justice as part of their examination of universal topics related to the human condition. His own work has spanned a new spatial matrix which incorporated space, theory and inquiry, which has forged greater understandings of the salient relationship and tensions which exist between place, planning and justice. This relationship, which links Marxist assumptions about class and alienation with Weber’s concepts of rationalisation, has recast the academic sector as direct participants in the wider socio-political contests of postmodernity, rather than detached philosophers on the margins of all that is just or unjust. Therefore, the profession of academics is potentially a socially profound one, which requires an active social conscience in addition to an ongoing engagement in the field. Moreover, it is within the interaction between concepts, material resources and the lived experience that we may find a true form of justice. Invariably, the modern planning process has sought to remove the middle classes from the fields of marginalisation which have emerged as a result of spatial inequality: The upshot is to leave the fate of the cities almost entirely at the mercy of real estate developers and speculators, office builders and finance capital. And the bourgeoisie, though still mortally afraid of crime, drugs, and all the other ills that plague the cities, is now seemingly content to seal itself off from any long term threats, secure in the knowledge that urban protests can be repressed by main force and so never become real revolutions. y all that is left is an occasional shiver of media-instilled fear as the riots taking place on the other side of town play live on television screens in terrifyingly

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comfortable living rooms. In recent years, the affluent also seem to have shed much of their guilty conscience. (Harvey, 2000a, 2000b, p. 13)

Harvey is concerned by the terminology of the new spatial exclusion zones, such as Murray’s depiction of a lurking ‘underclass’ or Newman’s detailing of a (1972) ‘defensible space’ which would exclude such an underclass and therefore reduce crime for the middle classes. Engles (Marx & Engels, 1988), in his Condition of the Working Class in 1844, assumed that the worker’s revolution would be born out of urban ghettos such as the poverty-stricken Irish settlements in Britain which emerged after the ‘Great Famine’ in 1840s Ireland and the notorious slums associated with Manchester’s Industrial Revolution. However, Harvey, like Marx, argues that revolution is never ignited when the poorest are alienated from an intellectual class. This form of ‘urban apartheid’ is now a relevant aspect of social marginalisation in all the major cities of the world, from Rio de Janeiro to Beijing. In addition, the inequalities of the world’s cities are reflected in the exploitative approach to the Earth’s resources, and as these cities have spread, so too have such resources come closer to extinction. Furthermore, the ongoing cycles of urban planning, construction, social breakdown, demolition and regeneration must be developed in a more sustainable manner, incorporating the views of the community, the needs of the populace while conserving natural habitats and resources, in order to create a just society within the city’s boundaries. Cities which plan for the just society need to plan for equality of rights and opportunities, which should be afforded to all citizens and extended to all species. Rather than develop cities of crass accumulation, speculation and exploitation, the just society requires development based on spatial and environmental justice, where creativity replaces capital and human endeavour is fulfilled in a positive manner which enhances the community and its environs. Creativity needs to be fostered and promoted, and lifelong processes of education are central to this goal, as shared pools of knowledge and experience can be harvested and distributed via traditional and nontraditional educational fora. Once this exchange of knowledge is established, and infrastructure developed in a just manner, the sustainable community may emerge. Replacing the financial markets with a creative commons would ensure a sustainable exchange, as a justice-based political economy took shape which could break the ‘monopolies of power’ currently in existence. Ultimately, the global money markets and financial institutions could be replaced

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with local currencies, exchange of goods and mutual co-operation. Communications technologies can enhance the global creative commons, while trade in goods between regions could be based on a fair exchange rather than an exploitative profit margin.

4.7. SUMMARY This section has outlined the significance of concepts such as ecological modernisation as a regulatory form of justice which has implications for both communities and the environment. Proper regulation of environmental issues creates the basis for a non-exploitative form of sustainable justice. In addition, the section examined the key philosophical debates surrounding environmental issues in justice, which has resonance for all communities in the ‘global village’. This section has also set out an understanding of Harvey’s vision of ‘what is possible’ for the urban community of the future. Harvey has also examined the problems of contemporary urban life in the United States. One iconic form of cultural production associated with Harvey is the critically acclaimed television series The Wire. The programme is set in the urban wastelands of Harvey’s hometown of Baltimore. Clearly, Harvey is concerned that communities take responsibility for their futures. Taking our cue from Harvey, it is a topic to be revisited in the future. Nonetheless, Harvey has set out a number of ‘urban myths’ which he opposes, and which we have highlighted and briefly responded to here for those who seek a more sustainable society. Harvey’s ‘11 myths’ and our responses are discussed in the following section.

4.8. HARVEY’S 11 URBAN MYTHS (Adapted from Harvey, 2000a, 2000b, pp. 48–51) The first myth is that finding the resources to tackle urban problems depends on first resolving economic development and population growth problems. Response: Community issues need to be tackled as a priority, in tandem with other issues. The second myth is that the urbanisation issues are rooted in more complex social problems which are somehow independent of regional or spatial planning.

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Response: Sustainable Justice requires ‘joined up thinking’ in relation to sociopolitical planning. The third myth is that, in future, the right technologies will solve urban population issues. Response: Sufficient technological expertise is already in existence to solve many social problems. The fourth myth is that complex social problems can be resolved by finding the right spatial design. Response: Design is a significant issue, but planning must be addressed with justice for the whole community and their environs as a primary concern. The fifth myth is that urban social problems can be resolved by giving market forces a freer hand. Response: Free market approaches to social justice have been proven to be exploitative. The sixth myth is that forces of globalisation are too strong for local or particular initiatives to have a positive impact. ‘Only a global revolution can change anything’. Response: Global justice is central to sustainable justice, but justice must be first found locally. The seventh myth is that community solidarity and community spirit can be a viable substitute for public politics. Response: Communities must go beyond local issues and embrace wider concerns. The eighth myth is that any radical transformation for communities is reliant on a political revolution of sorts. Response: The future for communities is neither ‘left nor right’; rather the future must provide sustainable forms of justice for all in the community. The ninth myth is that strong order, authority and centralised control – ‘be it moral, political, communitarian, religious, physical or militaristic’ – must be reasserted over cities without interfering in the market. Response: In light of the collapse of the big institutions, moral authority must reside in the sustainable community. The 10th myth is that diversity and choice in social values, lifestyle and movement are to be feared ‘as sources of disorder and that ‘‘others’’ should be kept out to defend the ‘‘purity’’ of place’.


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Response: Diversity and difference need to be embraced to underpin sustainable forms of justice. The 11th myth is that cities can only be anti-ecological constructs. Response: Sustainable Justice will create Sustainable Cities.

4.9. MARX AND THE CONTROVERSY ABOUT JUSTICE The debates about Marx’s work have evolved since his works were first published. In relation to Marx and justice, the debate has centred on whether Marx’s works denounced the capitalist society, or merely highlighted its inherent problems. Geras (1989) initiated the debate on the subject ‘does Marx condemn capitalism in the light of any principle of justice?’ At the heart of this debate is the central point of capitalism being an exploitative ideology. Those who agree that the nature of capitalism is fundamentally one which sees a small minority manipulate the greater majority for profit would tend to agree that Marx had indeed condemned capital for this reason. ‘Work’ is a commodity sold by workers and exploited by capitalists for valued profit. Wages are the exchange value for this transaction. It is the condemnation of workers to long hours of drudgery in pursuit of a wage that Marx highlights as the primary injustice in the exchange of work for wages that takes place between workers and capitalists. Once this exchange is established in a corrupt manner, then is the very nature of capitalism itself corrupted. However, in the ‘Controversy about Marx and Justice’ debate, Marx must be demonstrated to support or condemn capital for this uneven exchange. Geras reminds us that Marx acknowledges the fact that the worker loses ownership of his labour once they are contracted to the capitalist and that Marx was inclined not to write about ‘justice’ as he felt it to be too esoteric a concept which was primarily associated with bourgeoisie Liberalism. For Marx, anything which deflected from the materialism of the communist project would diminish its potency. He argued that economic restructuring and cultural development would subsequently correct any injustices that had developed under capitalism. Geras indicates that by this Marx is arguing that

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standards of justice, this may be taken to mean, are relative or internal to specific historical modes of production y The only principles of justice which are appropriate to judging a particular mode of production are those that in fact ‘correspond’ to it, that are functional to sustaining and legitimating it. (Geras, 1989, p. 1)

From this we can see that by ‘justice’ Marx was referring to ‘justice’ as it then exited under capitalism of the Industrial Revolution, with its lassire faire basis which was used to excuse all manner of injustice such as slavery or class inequality, as though a less-than-benevolent God had somehow preordained matters to favour the ruling elite in relation to the feudal hierarchies of the kings. If Marx had an interest in justice, it was certainly not bound up in reforming a system he had completely repudiated. Essentially, Geras is arguing that no matter what benefits were to come the way of the worker from reforming the capitalist system, Marx would have envisaged that such benefits would have been too insignificant in light of the greater injustices that were inherent in the worker–capitalist exchange through the means of production. Rather than supporting a reformist agenda that would enslave the worker in a slightly less bad situation, Marx rejects the idea that ‘justice’ could exist in the capitalist system altogether, and so condemned those who would seek justice from the same system: To clamour for equal or even equitable retribution on the basis of the wages system is the same as to clamour for freedom on the basis of the slavery system. What you think just or equitable is out of the question. The question is: What is necessary and unavoidable with a given system of production? (Marx: Wages, Price and Profit cf Geras p. 2)

Of course, what Marx was advocating was a revolution to overthrow the unjust system of capital, not a more just system of capital built on the same inequity. And it is here that Marx appears to repudiate justice. However, his concern was for the reformist agenda which threatened to engulf Marx’s communist message in the 1860s, as Liberals, Pietists and Trade Unionists and Socialists presented their arguments for reform. Justice for the workers would come with control of the means of production, and from production for the community through the craft of the worker, something which was central to his concept of ‘species being’.

4.10. MARX AND SUSTAINABLE JUSTICE Traditionally, Marxists writers were united in their hostility towards what they perceived to be middle class concerns with environmental justice or sustainability rather than working class concerns with community justice


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issues such as poverty. Subsequent to Bookchin’s work, there was a rediscovery of Marx and Engles as original political ecologists, who linked human and environmental emancipation in their works. Furthermore, there was an acceptance of significance of political ecology and linked issues, within the understanding of capitalist economy as the basis of wider injustices. Therefore, political ecology was understood as an essential part of the process of challenging capitalism, and causing capital to become its own ‘gravedigger’ (p. 68). Enzenberger has posited a critique of the traditional left’s view on ecologism alongside the critique of left’s concerns about of sustainable politics. Outstanding concerns about the confusion over the exact threat to the planet and its inhabitants have since been addressed by the publication of the 2007 IPCC report and acceptance that anthropogenic or human-based activity created climate change. The global ecological threat is highlighted by Enzenberger as a critical problem, and an injustice, for the poorest across the planet. He raises concerns about the lack of political or socio-historic responses to these issues and the lack of a sustainable form of political ecology in relation to global issues such as structural dependency, the disparities of material condition, pollution and resource use, with the only solutions offered amounting to no more than a ‘false discourse’. This unacceptable response was due to the competing social interests represented in political ecology as it exists within the current form of dominant political economy. Enzenberger outlines the three component parts the environmental justice movement as follows: 1. A technocratic elite in the service of industry, capital and the state. 2. New and old petit bourgeoisies campaigning on local threats. 3. Reduced petit bourgeoisie: hippies and alternative lifestyles. Enzenberger dismisses the third, but sees grounds for the second as a potentially potent mass movement, in light of the emergence of what Ulrich Beck and Anthony Giddens have termed the ‘risk society’ which threatens to engulf the planet. In the contemporary risk society, capitalism’s destructive powers come to equal its productive powers. Ecological destruction by capital in alliance with state represents an ‘ecoindustrial complex’ (Enzenberger, p. 9). However, mirroring the debate about justice, Enzenberger states that environmental justice disputes may only represent a conflict of class interests within capitalism. Enzenberger presents a critique of Marx and Justice in the following three areas:

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1. Anticipation about the role of material progress is rooted in a nineteenthcentury Euro-centric optimism that has now replaced a pragmatic realisation that revolutions can come from underdeveloped countries; that is ‘Justice’ isn’t the preserve of the capitalists to give; rather it is for the revolutionaries to take. 2. The question as to whether socialism can ‘take over’ capitalism is reformist. Capitalism is at once both ‘productive and destructive’ and remains so under liberal or socialist state control. 3. The Survival versus Abundance debate: Western wealth was taken from third world or emerging nations. Humankind has problems of survival now due to climate change, which override capitalist concerns for abundance. The third point is derived from Rolf Bahro, author of Socialism and Survival and From Green to Red, and activist with the German Greens. If Eastern socialism and Western capitalism were both fuelled by the globalised dynamic of capitalist accumulation and consumerism, they would cease to be different. With the emergence of Russian and Chinese capitalism, this congruence has come to pass. Therefore, socialism under this capitalistic influence cannot solve the ecological crisis any more than capitalism. The same can be said for private ownership versus state control, as both have negative implications in terms of either social or environmental justice. With Malthusian-type disasters impending due to climate change, flooding, global food shortages and subsequent social disorder, could socialism solve humanity’s social needs versus ecological destruction dilemma? Moreover, Enzenberger asks could a mass movement grow from political ecology in response to such threats? We can return to the role of Engles as a significant forerunner to understandings of political ecology in his work ‘Conditions of the Working Class’. Perelman refutes the argument that Marx failed to recognise the importance of the environment or resources from an economic perspective, thus missing out on the importance of political ecology as an economic critique. Marx was concerned about resource scarcity, according to Perelman. According to Benton, the lack of clarity emerges from the prioritisation of an economic reading of Marx over understandings of his ecological critique. Moreover, there is a need to apply the more positive concepts of Marx’s ‘species being’ to humanity in order to further understand wider ecological justice or ‘species ecumenism’ as Bookchin saw it. Prioritising Marx’s economic analysis over his deeper concept of ‘species being’ as represented by ‘craft by and for the community’ has led to a misunderstanding of Marx’s


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relationship with wider issues of justice. These misunderstandings are then followed by an economic reading of the ‘Labour Process’, whereas species being turns classical political economy on its head by locating craft and community at the heart of economic endeavour, rather than capital’s quest for profit, and this re-emphasis needs to be acknowledged. In The Labour Process, Benton argues that ‘nature imposed consideration of human existence’. There was an elementary set of factors within the labour process: (i) Work itself; (ii) The subject of work; (iii) The instruments of work. These factors shaped the nature of work and its ‘process y alters material worked upon’. However, the value or justice of work disappears in the production process (‘use value’) whereby nature’s material was adapted to the wants of men. According to Benton (p. 159): Need was therefore ‘meeting activity upon nature’. Nature was now a ‘subject’ of labour but the ‘species being’ based critique locates labour in the context of ‘community and craft’ which provide humanity with some notions of respect for resources, materials and subject. This approach prioritises the stewardship approach, based on conservation, rather than subjugation of nature. There was also a need for eco-regulation of agriculture for Benton. Nature ‘spontaneously’ provides raw material, while ‘species being’ is a ‘spontaneous’ response to the desire to fulfil relationships within the community through craft. The community could be seen to include nature (from Bookchin’s perspective). Marx links human hands as an extension of the material process, where labour brings humans into a form of ‘species ecumenism’ through good stewardship. Therefore, labour transforms the human as well as nature in a spiritual, philosophical, even metaphysical rather than purely economic way. The Earth provides ‘locus stands’ for labourer. The Earth is therefore pivotal to the basis of community values based on understandings of ‘species being’; therefore, Benton divides the ‘natural’ and ‘produced’ conditions of labour process. Raw material is ‘transformed’ by its use value through human labour. But humans are incorporated into nature, rather than subjugating nature, if this process involves proper stewardship (Benton, p. 160). All of this is relative to the ‘purpose of labour itself’. What is more significant is that this purpose may be orientated towards subjugation through capitalism, or it may be orientated towards stewardship through a ‘species being’ interpretation of the relationship between humankind and the

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resources of the planet. Therefore, environmental justice is dependent on a non-exploitative approach towards work and resources. For Benton, the ‘intentional structure’ of the labour process is ‘clearly a transformative one’. Significant local industry such as ‘handicraft production’ carpentry is central to this perspective: with craft based in the community, shared by the community and developed for the community in an instrumental and transformative process – this is the basis of Marx’s concept of ‘species being’. One example of community-based craft is seen in the production of furniture by crafts persons with local apprentices, who can retain the skills and pass them on in the community over time. At the global level, ‘Fair Trade’ produce provides a better exchange, and brings us back to the globalised ‘sociological imagination’ by which we can understand the importance of local community-based craft, rather than profit, for emerging economies. In addition, this sustainable form of production links community with its environs. From a community perspective, the production of tables built by local crafts persons and their apprentices reinforces the community and its future, with profit now not the primary consideration, much less the chicanery of the international finance markets. Therefore, ‘justice’ is seen to be borne of the community, for both the population and the environment. Weber’s concept of ‘status and association’ is also relevant to this authentic form of ‘social capital’. True social capital is derived from the community’s relationship with nature based on the stewardship of resources rather than exploitative impulses towards subjugation and profit. Under the communitystewardship model, those who work on the land can be seen as the primary environmentalists, rather than exploiters of nature. For Benton (p. 160) Ecoregulation allows nature to be transformed by a ‘naturally given organic mechanism’. Labour based on ecological and human justice provides the correct ‘conditions for this’. Labour therefore can be seen as something which is ‘sustaining, regulating and reproducing’, rather than merely transforming, or negatively exploiting or subjugating. Stewardship can therefore be seen as a type of natural ‘maintenance’ or restoration which is craft based and so closer to Marx’s concept of ‘species being’ in a fuller type of ‘Restorative Justice’, which rebuilds the relationship between humanity, other species and the planet.

4.11. MARX AND SUSTAINABILITY In order to better understand Marx’s perspective, we will examine his theories in more detail. The publication of the 1844 Early Manuscripts has


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led to the view that these early writings in some way represented a dichotomy between the humanist philosophically orientated side of Marx’s writing and his later more scientific and economic determinisms. Many writers, such as Ollman and Avineri, argue that there is a consistency that links these phases of Marx’s writing together. For Marx (2000), the Early Writings were an exploration of humankind’s communal nature, based on relations to society and about and his subsequent alienation as a result of the breaking of the bond that links people to each other and to the creative self. This section will use some of the key secondary writers on Marx to argue that, in fact, it is essentially these central themes of the Early Writings which provide us with an understanding of the root of Marx’s dialectical thinking. We can link Avineri’s position on humankind’s relations to their species with Ollman’s discussion of Marx’s key concept of ‘species being’. Ollman locates the context of the debate about Marx’s perspective on human nature by focusing on the idea of the process of private interests being transferred into the public arena, while Ernst Fischer discusses ‘species being’ as that of Marx’s idea of ‘the dream of the whole man’. Meszaros details Marx’s theory of alienation fully, bringing clarity to this key concept. All concur with the belief that Marx’s Early Writings are the site of the root of his dialect thinking, and the basis for his revolutionary ideal. With this in mind, the structure of the section is as follows. The first section deals with Marx’s understanding of communal man, with an insight into the key theme of the correlating bond of human existence. The second will deal with Marx’s theories on the state and religion, as outlined in his critique of Hegel. The third section will outline Marx’s understanding of economy, with an emphasis on his view of ‘wage labour’. By reference to the writers cited above, this paper shall argue that these themes of Marx’s Early Writings are critical to the understanding of the thrust of all of Marx’s writings, and as such place these early works as central to his philosophy per se. This section shall demonstrate Marx’s articulation of the human communal man, as outlined in The Jewish Question. For Marx, the rational thinking man of Mill’s classic liberal tradition leads to the breaking of the bond that exists naturally between man, and further leads to the curtailing of freedoms in the search for privacy and private property, causing the withdrawal of the individual into isolation. Marx argues that based on human nature, the association of man with man, that is, the relation of productive interaction, is the true demarcation of man from the animals.

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Marx uses The Jewish Question to outline his views on what he terms ‘species life’ and ‘species being’. Here he states, In the rights of man it is not man who appears as a species being; on the contrary, species life itself, society, appears as a framework extraneous to the individuals, as a limitation of their original independence. (Marx, p. 230, The Jewish Question)

Thus ‘species being’ is, for Marx, the realisation of the full potential of human creativity within a community-based society. According to Marx, if humans are to attain his true potential through ‘species being’, they must engage in productive activity which reflects what’s best in human nature, the ability to be truly creative within their environment in a manner which respects the rights of other human beings. In many ways, the concept of species being is the central thesis of Marx’s early writings. From this concept, we can fully understand Marx’s idea of man as a communal being, bonded together with his fellow man by expressing his creativity in the fullest realisation of species potential, or in Marx’s own words, ‘species being’. Avineri discusses this further when he says: Man’s relation of the members of his species thus determines not only the means of his existence, but it contents as well. (Avineri, p. 86)

Marx sees this realisation as being thwarted by the breaking of the communal bond, by the type of society which has grown around individual self-interest, and now acts as an intermediary between human beings. The main tenants of this ultimately alienating and exploitative society are the institutions of the state, global finance and religion. Coletti refers to these salient societal elements when outlining the separation of humanity into public and private existence by bourgeoisie society. Ollman concurs when he writes of Marx’s view on man’s relation to production and to his fellow man, with emphasis on the need to restore the communal bond in order to fulfil their potential. We can argues that it is within these themes that we can locate the essential part of Marx’s definition of the communal being – one who uses their intellect and craft to contribute and support the community as a whole. Avineri’s Social and Political Thought contains a detailed exploration of these themes. It is in his critique of Hegel’s writings that Marx details his criticisms of the mediation of the bourgeoisie state and religion, the pastoral paternalism of liberal society. Avineri further claims that Marx extricates the activist element of Hegel’s doctrine from its metaphysical setting and combines it with a materialist epistemology. Avineri also recognises Marx’s emphasis on the way the state regulates the separation of humanity into constitute


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private and public actors. Life in this regulated state has, for Marx, become centred on the individual’s right to private property. The state upholds this right, breaking the natural communal bond between humans and replacing it with egoistic market exchange and politics. In the Jewish Question, Marx goes on to argue that the true nature of political emancipation lies in the transfer of private interests into a public arena. An example of the state’s distortion of man’s communal nature can be seen in the state run by private ballot, based on egoistic self-interest, rather than the common good of society. The election of these representatives puts more distance between people, acting as mediators in social relationships and placing an emphasis on the private realm. Furthermore, Marx sees religion and the state as being agents of egoistic society, displacing man’s communal nature and replacing it with the twin icons of church and government. This form of society prevents the fulfilment of the ‘species being’ which Marx sees as the fulfilment of man’s potential. In the preface to Political Economy, Marx states that the economic structure of society is the basis on which rises a legal and political superstructure. We can further deal with Marx’s writings on wage labour, and economy in the context of justice. Marx based his critique on the writings of James Mill and Adam Smith. For Marx, it is the loss of humanising social dimension of labour which leads to alienation, and ultimately injustice. This loss of power on the open labour market is the central element in the creation of what Marx calls ‘wage labour’. The loss of rights, and ultimately humanity, stem from this market-driven need to work in order to survive, which leads to what Marx calls ‘alienation’ from our fellow man and from our creative capacities. Avineri further outlines this view of alienation, when he writes: Alienation is created in capitalist society not by the production of commodities but by the transformation of this production, according to political economy, from the objectified human activity into objective law as which independently regulate human activity. (Avineri, p. 107)

Fischer goes on to outline the alienation caused by wage labour in two aspects: (1) ‘The relationship of the worker to the product of his labour as an alien object which dominates him’. (2) ‘The relationship of the worker to his own activity as something alien, and not belonging to him y ’ (Fischer, p. 49).

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Ollman reiterates these views, explaining Marx’s idea of work as ‘Man’s reciprocal activities.’ He describes this further as ‘producing with, for or through others, and on the basis of what others have requested, supplied or taught y (Ollman, p. 105). This is in accordance with Marx’s position of man’s communal being reaching its fullest expression when acting in social co-operation. For Marx, the contradiction between private property and creative labour is the central point of his economic and philosophical analysis. When creative labour is turned into alienation in the form of wage labour, man is isolated form his fellow man and his creative self, and is reduced to producing commodities for exchange. Meszaros outlines Marx’s idea of ‘exchange’ as the open market. He explains this as the capitalistic process of wage labour private property and exchange. According to Meszaros, Marx sees this process as the main mediation that ‘split man into a public citizen and a private individual, and separates man from his ‘‘communal being’’, from himself, and from himself ’ (Meszaros, p. 75) For Marx, this separation could only be resolved by re-establishing the bond between humanity, in a realisation of their true species potential. The activity of labour would enhance this bond, with fulfilment being attained through the use of the produce of labour in the community. As Marx sees it, it is this form of activity which gives us our humanity. This section of the paper has explored Marx’s view of how communal labour becomes the defining point of man’s existence. Marx argues that creative labour is lost when man acquiesces with the demands of and becomes the ‘wage labour’ of surplus production. The result of this, for Marx, is what he terms ‘alienation’. In conclusion, this section has outlined Marx’s positions on man’s communal nature, the mediation of the state and religion, and the alienation of ‘wage labour’, as the central themes in his ‘early writings’ which can be understood within the context of justice and injustice in society. It is these themes which lay the foundation of Marx’s philosophy, and lead to the creation of his dialectical thinking. Marx’s views on the communal nature of humanity’s existence are central to his writings. This section has outlined Marx’s positions on humanity’s need for association, free from the shackles of church and state, finding fulfilment in creative labour to the benefit of the community and create opportunities for ‘sustainable justice’ in society, based on social frameworks which reject alienation and exploitation for a deeper engagement based on an ethic of contribution to the wider community. This ideal of this unfettered way of life, with humankind collectively shaping their destiny, is, for Marx, the apex of humanity’s species potential, and we would argue, a good point of departure in the search for justice.

CONCLUSION This book has examined the key social concepts of Sustainability, Justice and Community, in order to build better understandings of each concept. In addition, an outline of the manner in which a form of ‘Sustainable Justice’ could be constructed from existing initatives or theories has been presented. The main concepts examined, such as ‘restorative justice’, can address societal issues only within a wider context that incorporates justice as an issue which underpins all aspects of the major socio-economic, political and legal frameworks from which future societies emerge. To create a fully restored sense of justice in the community, the community itself must be restored, with all levels of injustice, inequality and corruption addressed in a non-exploitative manner. For too long, the major political, financial or religious institutions which have governed society have done so on the basis of a crass, exploitative and accumulative belief that the few should have more privileges than the many. This type of society belongs in the feudal ages from which each of these institutions emerged. A new beginning is required, not based on revolution, but rather steadily emerging from the bedrock of mutual assistance and community engagement with all issues in society, from planning to finance and from politics to policing. In order to establish a truly sustainable form of justice, we have argued that justice needs to be relocated in the community, based on concepts of mutuality, responsibility and social engagement. Community-based justice initiatives would enhance social capital, while the high levels of democratic deficit surrounding existing political systems would benefit from a mobilised public who were active in areas of local justice such as community forums and restorative community events. Economic activity would also benefit from local initiatives, and both local and global trade could flourish under ‘fair trade’ initiatives, with community finance replacing the failed international financial institutions, bringing economic justice to more of the Earth’s population.

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The initial discussion in this study set out the problems which have emerged under current punitive measures of state-based social control. Too many have drifted into negative, anomic lifestyles, where cultures of criminality have become the norm. In response, an understanding of the potential benefits of the sustainable urban community was established. In light of increased levels of urbanized living, we have located our response primarily within the debates about ‘the city’. In addition, the very nature of community is established, ranging from social capital to local finance projects in the community. The first chapter also dealt with the impact three key patterns of social breakdown and restoration have on communities. These three elements are socialisation as social induction, followed by deviance or criminality as a form of societal drift and ultimately resiliency building as part of the rebuilding of successful lives from social hardship which has on the whole enhanced the community. This section established that adequate levels of support for the societal frameworks which do exist for restoring those who have drifted away from the community can succeed, if greater efforts are made to extend levels of resiliency building for young people. This approach could lead to the establishment of suitable structures for sustainable forms of justice within the community, in addition to providing the basis for community restoration for those who do drift into anomic lives, an outcome which would enhance life opportunities and potential contributions from those who may otherwise drift into crime as a result of negative engagement with the legal system at a young age. The book’s second chapter presents a discussion about the key theories of justice which have underpinned the development of the major legal and political institutions along with shaping the administration of justice in modern Western societies. The section begins with an examination of the general political and philosophical ideas and concepts in the area of justice in the modern era. It goes on to examine the main perspectives of punitivebased systems of justice which are linked to these philosophical theories. Key concepts of political philosophers such as Bentham, Locke, Mill, Nozick and Rawls are set out in this chapter, in order to establish the basis for the theories of justice which are in existence at this time. The overview of theories of justice provided in this second chapter demonstrates that there are some inherent tensions in liberalism. These tensions cannot be resolved through a rejection of viewpoints on the importance of values and ideas, or utility and rights. Issues around rights, utility, difference and identity, universalism and community-derived particularity are presented as key issues for liberal theories of justice.

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The section also provides a framework for understanding the key theories of Functionalism, social control, crime and deviance, which surround the issue of restorative justice. The chapter goes on to establish key themes such as crime, deviance and delinquency. This is achieved by applying a sociological understanding and perspective to existing criminological inquiry. The next section examines the perspective of Durkheim, Foucault and Merton on crime. It then examines the Chicago School’s contextualisation of crime and delinquency, moving on to detail Matza’s perspective on theses issues. The chapter also examines ‘governmentality’ through Foucault and Dean. Furthermore, the chapter analyses contemporary sociological and criminological understandings of delinquency, deviance and juvenile justice. This chapter includes an examination of ‘the civilising process’ and anomie through the works of Merton and Elias. The chapter concludes with an outline of the significance of the functionalist socialisation in the context of youth crime and justice. In the third chapter, the potential for the restorative justice movement to have an impact in the areas of community development, civil society, governmentality and policy delivery is demonstrated. These impacts are shown to occur on various levels, as the capacity of restorative justice to serve as a facilitator of community empowerment is highlighted. In this way, restorative justice is outlined as a community justice-based initiative which strengthens civil society and third sector engagement, creating a form of social capital in society. While the risks of co-option are real for the community-based restorative justice movement, the processes of restorative justice hold out a much deeper promise of providing a real alternative to narrow punitive or the cycles of negativity that characterise many social or criminal disputes. In many ways, the restorative conferencing provides the type of access to political structures required by both communities and the state in the pursuit of more substantive public mediation processes. The section establishes the degree to which restorative justice can provide a viable alternative to disputes about the provision of social justice at the community level, whether in areas such as community participation in policing and judication processes, through to the creation of a positive and neutral space for social expression and dialogue on different levels. The fourth chapter discusses understandings of forms of sustainable political economy within the context of sustainability in the community. The section examines the issues which emerge when a community favours a green economic model over existing neo-liberal frameworks. In addition, the chapter highlights the significance of community-based political economy

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for the development of sustainable forms of justice. The section details the significant aspects of arguments for a sustainable form of political economy which incorporates particular concerns about social and environmental justice, which would underpin sustainable communities. In addition, the section outlined the significance of concepts such as ecological modernisation as a regulatory form of justice which has implications for both communities and the environment. Proper regulation of environmental issues is important as the basis for a non-exploitative form of sustainable justice. In addition, this section examines the key philosophical debates surrounding environmental issues in justice. This section further discusses understandings of Harvey’s vision of ‘what is possible’ for the urban community of the future. The chapter concludes by addressing Harvey’s understanding of several ‘urban myths’ surrounding radical restructuring of a just society. The final chapter also discusses the debates about Marx’s writings on justice and ‘species being’. The debate about Marx and justice is shown to have a focus on whether Marx’s works denounced the capitalist society, or merely highlighted its inherent problems. The work of Geras, who led this debate on the subject of whether Marx did indeed condemn capitalism, is analysed here. The debate is shown to be focused on whether Marx regarded justice to be a reformist agenda within a wider and exploitative capitalist ideology. Ultimately, we have established an understanding of the philosophical, theoretical and practical manner in which a form of Sustainable Justice in the Community could be established. By exploring these concepts both distinctly and as part of a wider social construct, we have illuminated the potential for a socially based form of restorative practice which could re-establish justice at the heart of the community, and provide the impetus for a wider awakening of community participation in the important processes which pertain to all in society, ranging from justice to politics to education. We hope to revisit these socially relevant themes in future studies, and will continue to explore the disciplines surrounding the concepts of a community-based and sustainable form of justice in order to continue with this most salient debate over time, as we carry the conviction that justice is something which is the preserve and the duty of all who seek answers to the problems facing humanity in the coming decades.

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SUBJECT INDEX Aboriginal, 74–75 academics, 4, 15, 27, 101, 104, 122–123 Activism, 19, 22, 31, 46, 99, 102, 112, 122 Adam Smith, 3, 115, 135 Advances in Ecopolitics, 1 Affect Theory, 75, 85, 87, 94, 100 African, 10, 29, 99 Alienated, 7–8, 15, 18–19, 83, 104, 124 Alienation, 106, 117, 123, 133, 135–136 Allen, 95 America, 12, 22, 24, 38, 46, 48, 73 Anarchist, 3, 119 Anderson, 21 Anomic, 15, 18–19, 30–31, 53, 59, 102 Anomie, 9, 20, 24, 30–31, 52–53, 56, 60 Anthony Gidden’s, 5 Anti-Apartheid, 29 Arrest, 5, 57, 89 Asia, 74 Assimilation, 3 Associations, 6, 102 Australia, 89, 99 Authoritarian, 3 Authority, 12, 32, 39, 41, 63, 71, 80, 97, 126 Avineri, 133–135 Barry, 101, 106, 116 Bauman, 7–9, 12 Bazemore and Schiff, 77, 79, 99 Beccaria, 51 Bentham, 43–45, 54 Benton, 115, 130–132 Biosphere, 117 153

Book, 1–2, 6, 14, 16, 20, 23, 27, 58, 119, 122 Bookchin, 3, 116–121, 129–131 Bourdieu, 3, 17, 20 Bowling Alone, 21 Braithwaite, 3, 75–77, 79, 81–83, 85, 87–89, 91, 94–95, 98–101, 103 Brehon Law, 97 British, 15 Brotherton, 8–9 Bush and Folger, 109 C. Wright Mill’s, 5 Calcutta, 10 Campaigns, 6, 29, 99, 114, 117, 119 Canada, 25, 99 Capital, 9–10, 18–27, 29–30, 34, 104, 106–107, 122–124, 127–129, 131–132 Capitalism, 25, 35, 115, 118, 121, 123, 127–131 Capitalist, 54, 70, 121–122, 127–130, 135 Capra, 24 Cavadino and Dignan, 91 Celtic, 10, 12, 74, 96 Chicago School, 52, 58 Chinese, 26, 130 Cities, 12, 14, 18–19, 23, 54, 122–124, 126–127 Civic, 17–19, 21, 23–24, 26–27, 106, 108 Civil society, 3, 16–18, 22, 40, 71, 76, 81, 95–97, 101–104, 107–108 Civilisation, 16–18, 47, 64, 115 Civilizing process, 26 Class, 1, 6, 12, 20, 46, 56, 58–61, 70, 94, 122–124, 128–130

154 Collapse, 2, 9, 12–13, 15, 26, 71, 123, 126 Communal, 2–3, 17, 19, 22, 96, 105, 121, 133–136 Communications, 30, 125 Communities, 1–3, 7–9, 15–19, 21, 24–27, 33, 51, 59, 76–77, 79–80, 84, 92, 94–95, 99, 103–106, 108, 113, 117–118, 121–123, 125–126 Community, 1–4, 6–8, 10–30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50–56, 58–64, 66, 68–70, 72–109, 111–114, 116–118, 120, 122, 124–126, 128, 130–132, 134, 136 Community movements, 7, 112 Community policing, 90, 104–107 Community-based mediation, 102 Compass of Shame, 75, 87, 94, 100 Concepts, 1–3, 8–9, 14, 23–25, 32–33, 35–36, 38, 64–67, 100, 105, 107, 115, 118, 121–123, 125, 130 Condition of the Working Class, 124 Conformity, 31–32, 53 Consedine, 74–76, 84, 101, 107 Conservatism, 3 Consumerism, 7, 13, 16, 130 Contemporary, 1, 6–8, 10, 12–15, 17, 21, 24–25, 30, 36–38, 40–41, 45–46, 50–52, 59, 62–64, 67, 71–72, 74, 77–78, 83, 87, 95–96, 106, 113, 119, 122, 125, 129 Corporate, 19, 22–23, 25, 27, 63, 71 Corporations, 25, 113 Corruption, 2–3, 7, 12, 14, 60 Counter-governmentality, 7–8 Courts, 1, 17, 33, 74, 78, 85, 88, 90, 92, 102, 108 Craft, 61, 128, 130–132, 134 Crawford, 76–77, 79–80, 88, 90–93, 97 Creativity, 1–3, 33, 121–122, 124, 134 Credit union, 20, 22, 25, 27

SUBJECT INDEX Crime, 1, 5–7, 9, 13–14, 18, 30, 32–34, 51–53, 55–61, 69, 73–82, 84, 91, 94–95, 97–100, 102–107, 113, 122–124 Crime control, 5–6, 74, 103 Crimes, 2–3, 6, 29, 51, 53, 57–58, 75, 88, 99 Criminal, 1, 6, 8–9, 13, 30–32, 53, 55–60, 64, 69, 73–74, 76–78, 81–85, 88–89, 91–94, 99–101, 103–104, 106–108, 113 Criminal law, 53, 57, 92 Criminality, 7–9, 14–15, 60 Criminologist, 10, 14 Critique, 3, 36, 42, 46, 62, 71, 75–76, 94, 96, 99–101, 115, 120–121, 129–131, 133–135 Cultural, 6–9, 12–20, 23, 26, 28–29, 31, 34, 46, 56–57, 61, 69, 72, 74, 76, 86–88, 95–96, 106–107, 120, 125, 127 Cultural capital, 20, 23, 34 Cultural Criminology, 6–9, 14–15, 18 Cultures, 5, 14, 17, 20, 26 Customs, 17, 29 Daly and Immarigeon, 99–101 De Geus, 16 Dean, 8, 52, 62–64, 71 Decentralisation, 111, 119 Declaration of Human Rights, 2 Declaration of Independence, 2 Deep green, 3, 113, 116–118, 121–122 Deep green theory, 121 ‘‘Deep-Green Theory’’ (DGT), 121–122 Delinquent, 32, 58–60 Denver, 11–12, 14 Devalls and Sessions, 121 Deviance, 1, 6, 19, 29–30, 32, 34, 52–53, 55, 57–58, 60–61, 69, 72 Deviant, 7–8, 29–32, 53, 57–58, 61 Dialectical, 119, 133, 136 Diffusion, 21, 28 Disadvantage, 48, 74, 106 Discipline, 9, 27, 54–55, 72, 114, 123, 140

Subject Index Discipline and Punish, 54–55 Discrimination, 6, 11, 33, 60 Downturn, 7, 10, 20 Dublin, 9–14 Dunning, 65–68 Durkheim, 3, 22, 28, 30–31, 52–53, 68 Dworkin, 36, 49–51 Early Writings, 3, 133–134, 136 Earth, 16, 18, 112, 114, 116–117, 124, 131 Earth Summit, 16, 112 Ecological, 2, 16, 23, 34, 101, 111–121, 123, 125, 127, 129–130, 132 Ecological Modernisation, 111–114, 116–117, 125 Ecologism, 36, 117–118, 129 Ecology, 23, 34, 113, 116–122, 129–130 Eco-modernism, 112–113 Economic, 2, 4, 7, 9–10, 12, 14–15, 17, 19–20, 22–23, 25–26, 46–47, 60–61, 63, 69, 71, 81, 101, 111–117, 120–122, 125, 127, 130–131, 133, 135–136 Economy, 4, 10, 14–15, 19, 24, 35, 65, 111–117, 119–121, 123–125, 127, 129, 131, 133, 135 Edward Said, 10 Egalitarian, 23, 41, 51, 118 Elias, 26, 52, 64–69, 72 Emerson, 26 England, 88, 93 Engles, 124, 129–130 Enlightenment, 36–38, 41, 43, 45, 95, 116 Environment, 2, 16–19, 21, 23, 55, 86–87, 106, 112, 114, 116–117, 119, 121, 123, 125, 130, 132, 134 Environmental, 17–19, 71, 111–114, 116–120, 122, 124–125, 128–130, 132 Environmental issues, 114, 119–120, 122, 125 Environmental justice, 17–19, 111, 113–114, 117, 124, 128–130, 132

155 Environmentalism, 3, 115–117 Environmentalists, 112, 132 Enzenberger, 115, 129–130 Ethnic, 6, 11, 23, 26, 29, 71, 86, 101, 120 Europe, 11, 37, 46, 71, 73, 100, 113 European Union, 11, 72 Exploitation, 18, 70, 115, 121–122, 124, 136 Fair Trade, 132 Family, 14, 23, 28, 32, 66–67, 69–71, 80, 97–99 Feminism, 3, 36, 100, 115, 121 Ferrell, 6–9, 11–12, 14, 18 Flexible, 1, 26, 81–82, 98 Fluid, 1, 13 Foreign, 11 Forgiveness, 17, 66, 74, 76, 84 Foucault, 3, 8, 18, 22, 52, 54–55, 63, 68, 71–72 Fourier, 26 Freedom, 9, 32, 36–37, 39–45, 50, 52, 121, 128 French Revolution, 2 Functionalism, 52–53, 70 Functionalist, 52–53, 66–67, 69–70 Functionalist Exchange, 66–67, 69 Gang, 6–7, 9–10, 14, 30 Garland, 68–69, 73 Geographers, 27 Geras, 127–128 Girardet, 16–19 Global, 6, 8, 12, 20, 77, 95, 113, 116, 118, 124–126, 129–130, 132, 134 Global creative commons, 125 Globalisation, 6, 12, 71, 121, 126 Globalization, 9–10, 13, 24 Goals, 22, 30–31, 34, 55–57, 72, 78, 105 Goldson, 59, 77 Governance, 8, 18, 40, 54, 61, 63–64, 71–72, 101–102 Governmental, 8, 22, 64, 71–72, 96, 101

156 Governmentality, 7–8, 13, 18, 22, 52, 64, 71–72, 107 Gramsci, 3 Grassroots, 102, 112, 114, 119 Gray, 40, 44–46, 50, 89, 93 Green parties, 113–114 Green politics, 117–119, 121 Groups, 5, 7–8, 11, 13, 16, 20–22, 25, 27, 33, 56–58, 60–61, 63, 65–66, 68, 70, 72, 85, 96, 99, 101, 103, 114, 116–119 Growth, 4–7, 12, 14, 18, 65, 67, 101, 111, 114, 120, 125 Growth cycles, 4 Habitus, 17, 19–20, 65, 102 Harvey, 3, 18, 23, 34, 122–125 Hawthorne, 26 Hayward, 6, 12, 14 Hegemonic, 7, 9, 28, 102 Hendrick, 59, 61 Hierarchies, 7–8, 20, 121, 128 Hobbes, 3, 36–37, 97 Hogg and Vaughan, 66–67 Holistic, 2–3, 79, 95, 100, 113–114 Hoyle, 77, 88–93, 98 Hudson, 36–38, 40, 42, 44–45, 49–51, 54, 76–77, 79–81, 91–94, 97–98 Human, 2–3, 7, 9, 16–19, 27, 32, 37–39, 41–46, 48–49, 51, 60, 65–67, 70, 74, 76, 82, 84–86, 91, 96, 115, 118–119, 121, 123–124, 129, 131–135 Humanity, 2–3, 16–17, 62, 116–117, 123, 130–132, 134–136 Humans, 2, 113, 122, 131, 134–135 Identity, 12–13, 20, 33, 52, 105 Ideological, 3, 5, 8–9, 13, 15, 63, 71–72, 118, 121–122 Ideologies, 2–3, 9, 38 Ideology, 3, 7, 13, 61, 70, 121, 127 Illegal drugs, 6, 32 Imagination, 2, 5, 132 Immigration, 10–11

SUBJECT INDEX Individual, 2, 16, 27, 30–33, 41–42, 44–46, 48–49, 54–56, 58–59, 62–63, 66–67, 76, 78, 81–82, 91, 98, 102–106, 120–121, 133–136 Industrial Revolution, 25, 117, 123–124, 128 Inequality, 20, 34, 40, 45, 47–48, 70, 95, 123, 128 Inhabitants, 10, 12, 17, 20, 129 Inner-city, 10, 122 Institutional, 3, 12, 17–18, 31, 38, 56–57, 99, 101, 114, 116–117 Institutionalised power, 3 Institutions, 2, 7, 14–15, 20, 26, 28, 34–35, 38, 45, 50, 56, 68–70, 81, 83, 105–106, 111, 120, 122, 124, 126, 134 Intergovernmental Panel on Climate Change (IPCC), 115–116, 129 International, 6, 10, 25, 95, 99, 123, 132 Internet, 6, 19, 21–22 Ireland, 9–15, 95, 97, 124 Jared Diamond, 26 Jock Young, 14 Johnstone, 76–77, 79–83, 92, 98, 103 Johnstone and Van Ness, 76–77, 79–80, 92 Jurisdiction, 1 Just, 4, 15–17, 39, 41–49, 55, 61, 74–75, 77–78, 83–84, 91, 116, 118, 123–124, 128 Just Desert, 77–78, 83, 91 Justice, 1–109, 111–118, 120–132, 134–136 Justice system, 1, 69, 73–74, 76–78, 81–85, 88–89, 92, 99–101, 103–104, 106–108, 112 Kant, 3, 36–37, 41–44, 51 Kennet and Heinemann, 115 Kilkelly, 89–90 Knowledge, 3, 8, 23, 26, 38–41, 46–47, 80, 98, 123–124

157

Subject Index Landscape, 12, 18 Laslett, 36, 38–41 Laws, 1, 5, 11, 17, 30, 32, 38, 40, 42, 49, 53, 57, 64, 97 Legitimation, 40, 72 Leonard, 19, 26, 33, 66–67, 100, 106, 114 Leonard and Kenny, 33, 66–67, 100 Liberal, 5, 8, 12, 15–16, 36–41, 43, 46, 50, 52, 61–63, 71, 76–77, 111, 113–114, 130, 133–134 Liberalism, 3, 5, 9, 36–38, 40–42, 46, 50–51, 61, 112–113, 115, 127 Liberals, 38, 45, 50–52, 77, 111, 128 Libertarian, 3, 119–120 Liberty, 39–41, 44–45, 47–52 Liquid society, 13 Living Wage, 106 Locke, 3, 36–41 Maori, 75–76 Marginalisation, 63, 71, 123–124 Marginalised, 5, 7, 12, 33, 60, 93, 105–106 Marshall, 77–79, 89 Marx, 3, 22, 61–63, 69, 115, 124, 127–136 Marxist, 34, 70–71, 123 Material, 16, 20, 37, 40, 45, 48, 56, 70, 81, 91, 98, 123, 129–131 Matza, 32, 52, 58, 60 Maxwell and Morris, 89–90 McAdam, Tarrow and Tilly, 108 McCoubrey and White, 47–48 McMillan and Chavis, 24 Media, 6–7, 9–10, 12–13, 20, 28–29, 101, 114, 123 Mediation, 73–76, 84, 93–94, 99–100, 102–104, 108–109, 134, 136 Merry, 56, 100 Merton, 30–31, 52–53, 55–57, 59–60, 64, 68 Meszaros, 133, 136 Middle Ages, 65

Migrant, 11 Mill, 5, 36–38, 43–45, 49, 115, 133, 135 Minority, 14, 30, 49, 99, 127 Mobilizations, 27 Modernisation, 111–114, 116–117, 125 Modernity, 7–9, 12, 14 Money, 6, 24, 77, 119, 124 Moral, 6, 9, 13–14, 16, 28–29, 32, 36–37, 39, 41–43, 45, 51, 54–55, 57–58, 60, 63, 91, 115, 120, 123, 126 Moral panics, 6, 9 Morris and Maxwell, 91 Movements, 7–8, 22, 24, 29, 95, 99, 101–102, 112, 114, 117–119 Multicultural, 26 Multinational, 6 Muncie, 53, 69, 77 Murray, 33, 118–119, 121, 124 Muslim, 57 Nathanson, 75, 85–87, 94 Native American, 74–75, 99 Natural world, 117, 121 Neo-conservative, 12, 62 Neo-liberalism, 3, 5, 9, 38, 61, 112–113 Network, 18, 26, 72 New Zealand, 75, 89, 99 Newburn, 59, 76–77, 79–80, 88, 90–93, 97 New Left, 3–4, 27, 36, 71, 99, 118–119 New Right, 3, 59, 62–63, 71 NGOs, 22, 96, 101–102 Niche politics, 3 Nils Christie, 5 Norms, 6, 9, 14, 21, 26–32, 53, 55–60, 69–70, 72 North, 11, 24, 119 Nozick, 3, 36–37, 40, 50–51 O´ Broin and Kirby, 95 O’Connell, 11, 87 O’Mahony, 10, 83

158 Offenders, 2, 5, 50–51, 65, 68, 73–74, 76, 78–88, 90–94, 97–99, 102–103, 106–107 Ollman, 133–134, 136 On Liberty, 44–45 Order, 2–3, 13, 29, 39, 46, 51, 53–55, 57, 61, 63–65, 68–71, 79, 81, 84–85, 88, 91, 93, 95, 100–101, 106–107, 111–112, 123–124, 126, 130, 132, 134–135 Organizations, 22, 26, 118 Pantheon, 2 Parsons, 60, 69 Participation, 2, 16–19, 23–24, 33–34, 80–81, 84, 97–98, 104–106, 108 Pathways, 24, 30 Pauli, 24 Peer-pressure, 32 Pepinsky and Quinney, 100 Perspectives, 3, 35, 38, 51–52, 70 Philanthropy, 19, 23, 25, 62 Philosophers, 16, 36, 38, 123 Philosophical, 1, 27, 35–38, 94–95, 100, 119, 121, 123, 125, 131, 136 Philosophies, 2, 97, 100, 108, 119 Planet, 2, 16–18, 27, 115, 123, 129, 132 Pluralism, 12, 22, 38 Police, 1, 9, 11, 17, 28, 33, 35, 57, 59, 64, 72, 87–90, 98, 105–108 Policing, 13, 17, 59, 64, 90, 103–108 Policy, 15, 72, 75, 81, 94–96, 101, 106–107, 112–113 Political, 2–4, 6–8, 12–16, 18–19, 29, 35–38, 46–47, 49, 56, 59, 61–64, 72, 76, 94–96, 101, 103–104, 108, 111–127, 129–131, 133–135 Political ecology, 129–130 Political economy, 4, 19, 111–117, 119, 121, 123–125, 127, 129, 131, 133, 135 Poor, 8, 12, 23, 34, 59, 61–63, 83 Population, 11, 14–16, 18, 24, 62, 97, 117, 125–126, 132

SUBJECT INDEX Populist, 10–11, 13 Post-modern, 7, 12–13, 24 Poverty, 7–8, 10, 12–13, 30, 33, 62, 71, 111, 114, 116, 122, 124, 129 Power, 3, 5–7, 13, 15–16, 22, 30, 36–37, 39–41, 46, 54–55, 61–64, 70–72, 77, 81, 83, 89–90, 95–96, 101, 111, 119–120, 124, 135 Power relations, 5–6 Principles, 24, 36, 39, 41, 43–44, 46–51, 75, 79, 84–85, 88, 94, 96, 98, 104, 128 Prisoner Rights, 99 Prisoners, 10, 54, 99 Protestant Work Ethic, 61 Psychologists, 27 Public, 6, 9–11, 13, 15, 19, 21–23, 26, 29, 53–54, 60, 63, 73, 83, 92, 102–103, 108, 113–114, 126, 133–136 Putnam, 3, 21, 26, 30 Qualities, 2 Qvortrup, 69 Racial Discrimination, 11 Racism, 7, 11, 99 Rationalisation, 5, 46, 63–64, 123 Rawls, 3, 36–38, 41, 43, 46–51 Reclaim the Streets, 119 Reconciliation, 74, 76, 79, 84, 99 Regional, 6–8, 19–20, 22, 64, 120, 125 Rehabilitation, 5, 13, 29, 77, 81, 107 Reintegrative Shaming, 75, 82, 85, 89, 91, 94, 100 Religious, 2, 14, 20, 23, 25, 28–29, 38–39, 61–63, 71, 74, 76, 121–122, 126 Remand, 5 Republic of Ireland, 9 Resiliency, 33–34, 105–106 Resilient, 1, 32, 105–106 Resistance, 7, 12, 56–57, 117 Resources, 17–20, 22–23, 25, 27, 48, 59, 71, 106, 122–125, 130–132

Subject Index Respect, 2–3, 17, 21, 32, 36, 38, 40, 42, 51, 80, 82, 92, 98, 117, 131 Restorative Justice, 2–3, 17, 52–53, 65, 72–85, 88–104, 106–108, 132 Retributive, 2, 76, 78–79, 82 Revolutionaries, 130 Rights, 2–3, 7, 10, 16–17, 21, 29, 36–37, 39–41, 43–45, 48–49, 52, 62–64, 70–71, 76, 89, 91–92, 94–95, 99, 101, 121–122, 124, 134–135 Roche, 76–77, 80, 89, 92 Romania, 10 Ross, 32 Rousseau, 97 Rules, 8, 27–28, 32, 39, 42, 44–45, 49–51, 53–54, 56–57, 61, 70, 72 Rural, 8, 13, 16, 18, 35, 106 Russian, 2, 118, 130 Russian Revolution, 2 Sanctions, 51, 61, 74 Scholte, 96, 108 Secularism, 35, 38, 61 Security, 11, 37, 45, 52, 55, 64–65, 70, 73, 102–103, 116 Series, 1–2, 9, 20, 23, 29, 55, 125 Shearing and Stenning, 54–55 Simulacra, 12 Social capital, 20–21, 30, 34, 104, 106–107, 132 Social cohesion, 21, 26 Social control, 5, 8, 32, 52, 54, 64–65, 69, 71, 77, 83, 95, 103 Social functions, 17, 53, 69 Social intelligence, 28 Social justice, 15, 17, 19, 95, 101, 104, 108, 111, 122–123, 126 Social movement, 8–9, 19, 27, 29, 31, 77, 83, 95, 99, 101, 107 Social planning, 118 Social project, 2, 23 Social protest, 118 Social psychological, 24

159 Socialisation, 27–28, 30, 32, 34, 52, 58, 69–70 Socialism, 3, 37, 71, 121, 130 Socialists, 128 Society, 1–3, 5–11, 13–18, 20–25, 27–33, 36, 38–41, 43–49, 51–60, 63–65, 67–72, 74, 76, 78, 81, 84–85, 87, 95–97, 99, 101–104, 106–108, 113, 115–120, 124–125, 127, 129, 133–136 Socio-economic, 9–10, 15, 121, 137 Sociological, 5–6, 14, 52, 58, 68–69, 72, 132 Sociologists, 27, 60 South Africa, 29, 99 South American, 17 Spatial, 12, 14, 23, 34, 122–126 Species being, 3, 22, 61, 128, 130–135 Stakeholders, 74, 79–80, 84, 97, 101 State, 1–2, 7–11, 14–15, 20, 28, 35–41, 46, 50, 53, 55, 59, 61–65, 67, 71–72, 74, 76–81, 83–85, 89–90, 92–97, 101–103, 107–108, 112–113, 120, 129–130, 133–136 Stenson and Lea, 102 Stewardship, 115, 131–132 Streetscapes, 7 Structures, 1, 36, 50, 52, 54, 56, 58–59, 63–64, 66, 70, 92, 104–105, 108, 111, 113, 121 Subcultures, 7, 30, 58–59 Sustainability, 1–2, 17, 26, 111–114, 116, 128, 132 Sustainable, 1–34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66, 68, 70, 72, 74, 76, 78, 80, 82, 84, 86, 88, 90, 92, 94, 96, 98, 100, 102, 104, 106–108, 111–136 Sustainable Development, 2, 16–17, 23, 112, 116–117 Sustainable Justice, 1–34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66, 68, 70, 72, 74, 76, 78, 80, 82, 84, 86, 88, 90, 92, 94, 96, 98, 100, 102,

160 104, 106–108, 111–112, 114, 116, 118, 120–122, 124–128, 130, 132, 134, 136 Sutherland, 30 Sykes, 32 Systems, 2, 18, 21, 27, 35, 38, 74–75, 77–78, 81, 92, 99, 112, 120 Technologies, 19–20, 125–126 Technology, 18, 54, 60, 120 The community, 1–4, 6, 8, 10, 12, 14, 16–20, 22–24, 26–30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50–56, 58–60, 62, 64, 66, 68–70, 72–109, 111–114, 116, 118, 120, 122, 124, 126, 128, 130–132, 134, 136 The environment, 2, 16, 19, 21, 23, 55, 114, 116, 118–119, 121, 123, 125, 129–130, 132 The Other, 10, 36–38, 44, 51, 59, 66, 74, 77–78, 84, 112, 123 Theorists, 2–3, 14, 16, 22, 32, 36, 38, 41, 68, 76, 87, 91, 95, 108, 118, 121 Thoreau, 26 Tomkins, 66, 75, 85–87, 94 Tonry, 81 To¨nnies, 3, 21 Trade Unionists, 128 Traditional, 9, 12, 22, 28, 30, 32, 36, 55, 61, 63, 71, 73–74, 76, 78, 81, 96, 101–102, 107, 118, 124, 129 Transgressive, 7–8, 51 Trial, 5 Turkish, 10 U.S. civil rights movement, 99 Underclass, 14–15, 33, 124 Understandings, 1, 6, 9, 14, 22–23, 27, 29, 32, 35, 37, 52–53, 56, 63, 66, 72, 87, 95–96, 99, 105, 109, 111–112, 114, 121, 123, 130–131 United Nations, 2, 17, 74–75

SUBJECT INDEX United States, 8, 11, 16, 22, 25–26, 37, 46, 48, 104, 112, 116, 119, 125 Unlawful, 58, 60 Urban, 7–9, 11–16, 18–19, 23, 35, 58–59, 83, 106, 118, 122–126 Urban regeneration, 19 Utilitarian, 36–37, 43, 45, 49, 51, 59 Utilitarianism, 43–46, 49–51 Utopian, 16, 25, 116, 118 Utopias, 3 Values, 14, 16, 20–21, 26–30, 32–33, 36, 39, 41, 45, 51–53, 56, 61, 70–71, 79, 88–90, 92, 98, 104, 111–112, 126, 131 Van Ness, 76–77, 79–80, 84, 89, 92, 94, 101 Victim, 2, 5, 66–67, 73–75, 77–85, 87, 91, 93, 97–99, 102 Wales, 88, 93 Walgrave, 76, 79, 88–89, 93, 99 Wall Street, 113 War on Drugs, 6 Weber, 3, 22, 61, 123, 132 Weitekamp, 76 Welfare state, 9, 14, 46, 62–63, 71, 76–77 Western world, 5 Wheeldon, 103 Williams, 41–43 Women, 10, 29, 63, 99, 101 Works, 2, 22, 36, 44, 46, 66, 69, 94, 106, 118–119, 127, 129, 133 World Trade Organisation (WTO), 119 Young, 6, 13–15, 33–34, 54, 56, 58–60, 77, 88–94, 98, 105–106, 118 Zehr, 76–79, 93, 99, 101 Zero Tolerance, 6

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