EXPLICACIÓN DE LA RUEDA DEL UNIVERSO O LA CREACIÓN

This section expands on why RJ in particular can claim greater coherence in its decision-making process. As with the above section, the reasons developed here are aimed mostly at the decision-making concerning purposes of punishment, but are also applicable more broadly. This section will build on what has been argued above, explaining how RJ in particular (as opposed to other forms of public engagement in sentencing – which are addressed further, below) allows for this local, practical knowledge to emerge and how the process itself utilises this knowledge. It is important to identify precisely what is unique about the RJ process in its ability to both encourage a wider knowledge base, and to provide a particularly good forum for the development and deployment of such knowledge.

In advocating a more participatory style of penal policy making, Johnstone has argued that “[a]s people become more practically involved in the criminal justice process, they will tend to regard doing justice as a practical problem” (2000, p.171). According to Johnstone, individuals’ absolutist moral ideas can be tempered by increased awareness of practical realities:

In particular, as people are given more information, as the questions they are asked become more concrete, as they are given more time to think and as they are given the opportunity to discuss and debate things with others, their initially severe and intemperate ‘solutions’ to problems of crime and disorder tend to become more moderate. (Johnstone, 2000, p.170–1).

Whilst Johnstone’s comments are aimed at penal policy making generally, rather than specific instances of sentencing, these observations could feasibly be extended to such decisions. RJ provides opportunities for discussion and debate, as well as enabling more information about the offence and the offender to be at play and could therefore be seen as a forum for the development of individuals’ moral ideas.

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As well as more information being available in an RJ process, more types of dialogue are also permitted than in the traditional sentencing process: “Hearsay, reputations, gossip relating to the offence, group dynamics and community politics are all potential subjects for discussion” (Shapland et al, 2006, p.509). It should be clarified, however, that it is not any potential that RJ might possess to encourage moderation in sentencing that is the focus here – rather its capacity to provide a forum for the debating and development of ideas. Shapland supports this contention: that RJ can allow for practical reasoning:

In creating this future orientation, often expressed in an outcome agreement, people’s original ideas are often modified or amplified through the discussion, as they respond to the concrete situation of the offender and victim. (Shapland et al, 2006, p.522)

It is perhaps worth noting at this point, that RJ as conceptualised here, could even work well for theories which do not support a view of the plurality of justice (as is argued for in this thesis). For example, Robinson and Darley (2007) argue that people share intuitions about the appropriate punishment for crimes – at least, broadly and in relation to scales of seriousness. They hold that these intuitions are pre-rational in the Kahneman sense (see Kahneman, 2011), and are more

retributive in nature (what they term “empirical desert”). However, they also hold that people can choose to act more rationally and give less credence to these intuitions: “by enlisting reasoning processes, it is possible for persons to override the products of their intuitive system” (2007, p.67). Therefore, were one to

subscribe to such a view, rather than what has been proposed here in relation to a plurality of views, it is arguable that RJ could provide an ideal forum for

encouraging reasoning processes to balance any intuitive views which may exist. 73

73 _{Note however, that the arguments put forward by Robinson and Darley (2007) are not supported}

here. See Kolber (2009) for a criticism of their views, including allegations of cherry-picking the data used to suggest a largely retributive shared intuition.

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Notably, however, Sunstein (2000) points to a rather different phenomenon in relation to the development of ideas in group decision-making (which RJ is a form of). Whilst he focuses his critique on democratic theory, rather than RJ in

particular, it is nevertheless ostensibly applicable to RJ and hence needs to be engaged with.74 _{It is also useful to discuss here, as the particular understanding of}

RJ adopted for this thesis avoids a serious flaw in group decision-making which is identified by Sunstein.

Sunstein suggests that in group decision-making, individually-held positions tend to polarise and become more extreme, and it is hence important in trying to achieve the “right” decision, that a group consists of people holding a wide cross- section of views:

In a finding of special importance to democratic theory, group

polarization is heightened if members have a sense of shared identity. And in an equally important finding, group polarization is diminished, and depolarization may result, if members have a degree of flexibility in their views and groups consist of an equal number of people with opposing views. (2000, p.118)

Sunstein goes on to say (2000, p.118):

the mechanisms that underlie group polarization raise serious questions about the view that deliberation is likely to yield correct answers to social questions. Like-minded people engaged in discussion with one another may lead each other in the direction of error and falsehood, simply because of the limited argument pool and the operation of social influences.

In an RJ process, there is no scope to ensure that there are equal numbers of participants with opposing views involved. There are pre-defined stakeholders who will be the participants regardless of their views. They may therefore, for

74 _{See below for further discussion on the similarities – and differences – between RJ and}

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example, all be retributivists, in which case utilitarian theories of punishment might not be engaged with in the discussion at all. Sunstein’s argument would indicate that this is not, therefore, a desirable way of achieving the “right” answer. As Sunstein says, his account “does raise real questions about the widespread idea that deliberation is the best way of producing right answers” (2000, p.107).

However, the contention in this thesis is not that the RJ process is best able to achieve the “right” answer – indeed, it has been argued above (see the discussion of Hampshire, 1999) that it makes little sense to talk in terms of one correct sentencing outcome which meets an objectively correct version of justice (see also Luna, 2003).75 _{There is therefore no need to ensure a diversity of views, such as}

Sunstein suggests is necessary to guard against a “limited argument pool”. The reason for the limitation of the argument pool to specific people in RJ is because they are the stakeholders of the offence and it is their notion(s) of justice which are relevant in deciding the outcome for that particular offence (as argued in the section above on the genesis of the justice of the decision). Gathering

unconnected individuals together to ensure a cross-section of views would undermine the coherence being sought in terms of why particular theories of punishment and justice have relevance to a particular case. What is sought in the model of RJ outlined in this thesis is not a mean average notion of justice, but the best representation of the notion(s) of justice held by those most affected by the offence.

75 _{This is important to note when bearing in mind the potential criticism that the values}

stakeholders bring to the process might not be objectively desirable. For example, Shapland et al point out that “[a]s local, cultural values, they are also subject to all the criticisms correctly made of local justice … which can be intolerant of minorities and highly punitive” (2006, p.523). The

response could simply be that there is no valid external evaluation of an agreed RJ outcome and its associated values, as the point is for the values of the stakeholders to come to the fore. This is a somewhat stark reply, which could be softened by suggesting that whilst this is the case (seeing as no claim is made that RJ outcomes coincide with any “right” decision or objective notion of what is just) it is also important that certain practical measures be put in place, such as judicial oversight of decision-making processes. These measures should reduce the potential for RJ to become subject to the same criticisms as other local justice initiatives. Such measures have been advocated by Roche (2003) and are discussed in more detail in Chapter 5.

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Interesting to note is that Sunstein’s argument might be problematic for outcome- focused conceptions of RJ. It would need to be explained why particular

restorative outcomes are likely, if it cannot be guaranteed what views stakeholders begin the process with, and if it cannot be guaranteed that

stakeholders will hold a wide cross-section of views. In contrast, the approach to and understanding of RJ adopted here is a decision-making process which has no objectively “right” answer, but can have a more or less coherent process. The important point is that the views of the stakeholders are heard and that the process yields an outcome which best caters to those views. That individual’s views may change during the discussion does not undermine this account – the agreement of all parties to the outcome should be equivalent to them

acknowledging that having heard all (possibly opposing) views, they are satisfied that this outcome best meets their understanding of justice as it then is at the point in time the agreement is reached – bearing in mind that it may have to have been moderated to accommodate other participants with dissimilar views.