Abstract

Excerpted From: Aparna Polavarapu, Myth-busting Restorative Justice: Uncovering the Past and Finding Lessons in Community, 13 UC Irvine Law Review 949 (May, 2023) (319 Footnotes) (Full Document)

The modern restorative justice movement is regularly tied to the past. Many practitioners and advocates, this author included, often cite to existing systems of justice around the world as sources of inspiration for the modern restorative justice movement. Howard Zehr, often referred to as “the grandfather of restorative justice,” argues that “[r]estorative justice is based on an old, common sense understanding of wrongdoing.” Kay Pranis likewise asserts that the assumptions underlying circle practice are “common in the worldview of most indigenous cultures.” Scholars tell a story of an old and widespread form of justice that is now being revived after a period of suppression.

While this is an important narrative for restorative justice advocates, it is not uncontested. Other scholars push back against the sheer breadth of the claim, arguing that it is unsupported by the evidence. The argument is not that the claim lacks any truth, but that there is no supportable reason to claim that restorative justice was the dominant form of justice around the globe. Further, such an overwhelmingly broad claim tends to lead to romanticization and whitewashing of indigenous traditions, serving the needs of largely white, Western advocates in yet another colonial endeavor.

But ignoring the indigenous contribution to restorative justice is whitewashing by a different route. There is an observable, direct relationship between modern restorative practice and certain indigenous practices. For example, American practitioners have been trained by members of some Indigenous groups, including the Blackfoot Confederacy and the Ojibwe. Robert Yazzie, a citizen of and Chief Justice Emeritus of the Navajo Nation as well as a restorative justice practitioner, describes aspects of Navajo justice as seeking to achieve restorative justice.

While these connections are evident, they do not account for the widely held view--or “myth” as described by restorative justice scholar Kathleen Daly-- that “restorative justice uses indigenous justice practices and was the dominant form of pre-modern justice.” As this Article argues, the truth in both accounts stems from a simple fact: it is unclear exactly how much of modern restorative justice practice can be found in historical, indigenous approaches to justice around the world. Without a coherent methodology, one cannot begin to investigate the truth of the matter.

One complicating factor of this debate, this Article argues, is definitional: such a question cannot begin to be answered without isolating what we mean when we employ the term restorative justice. There are numerous approaches to implementing restorative justice and multiple definitions of the term. A growing number of practitioners means a growing variety of practices, and an accompanying sense of definitional uncertainty. Though some degree of difference is to be expected within the universe of restorative justice advocates and practitioners, that universe must also be bounded for the term to be meaningful. Because the term has gained in popularity, some actors have simply affixed it as a label on existing practices without implementing any meaningful change, perpetuating these pre-existing practices under a false label. Further muddying the waters are internal disagreements within the restorative justice community as to what constitutes restorative practice. For example, though many practices are rooted in or somehow connected to criminal legal settings, some restorative justice practitioners seek to avoid working with or reinforcing the state in any form. Any definition or conceptualization of restorative justice must be broad enough to incorporate the diversity of practices--while still adhering to some unified core--and give space for existing debates to refine our understanding.

With a definition that identifies the key elements of restorative justice, it becomes possible to map the similarities between indigenous practices and modern restorative justice. To the extent indigenous practices do involve at least some key elements of restorative justice, they offer opportunities for learning. For example, using case studies from sub-Saharan Africa, this Article argues that past practices offer insight into how we should be thinking about community in the context of restorative justice. While “community” is considered a key component in most restorative justice definitions, what community means is underdiscussed and varies across practices.

Thus, this Article offers three main contributions. First, it reveals the current lack of empirical grounding for the common narrative. This descriptive insight motivates the second contribution: the creation of a methodology for better ascertaining the degree to which any historic, indigenous practice did constitute restorative justice. Applying this methodology to investigate the traditional practices of the Igbo and Acholi in sub-Saharan Africa, the Article begins the work of documenting the relationship between restorative justice and historic practices, work that leads to the third and last contribution. Better conceptualizing past practices not only advances our understanding of such practices but also contributes to our understanding of modern restorative justice. Here, the case studies of the Igbo and Acholi reveal a need for restorative justice scholars to engage in greater conceptual and empirical analysis of the role of community in restorative justice practices.

This Article begins, in Part I, by delving into the scholarly discussion around the claim that modern restorative justice is simply a revival of a widespread and dominant historic practice and ultimately finding that the claim currently lacks adequate empirical support. Part II, seeking to develop a definition against which indigenous practices can be compared, explores the various working definitions and frameworks used by restorative justice scholars and practitioners, before suggesting a definition that identifies the key elements of restorative justice. Part III operationalizes these elements to investigate the extent to which the pre-colonial justice practices of the Igbo, in what is now Nigeria, and the Acholi, in what is now northern Uganda and South Sudan, constitute forms of restorative justice. Finally, Part IV demonstrates how looking to past practices can offer lessons for restorative justice practitioners and scholars. From the Igbo and Acholi, we are reminded to give greater attention to understanding the role of community in restorative justice practices.

[. . .]

It is possible, with careful and deliberate research, to ascertain the degree to which restorative justice existed in historic practices. The claim that restorative justice has global and historic roots does not need to be set aside as some myth that cannot be investigated. This Article, by beginning with a definition of restorative justice that is comprised of several key elements, offers a methodology for investigating the question of whether and to what degree specific historic practices do, in fact, constitute restorative justice as we understand the term.

This research on its own would be valuable simply because it creates an opportunity and responsibility for researchers and practitioners to acknowledge the roots of the various elements comprising restorative justice. This approach encourages us to be truthful and nuanced in our descriptions, rather than exoticize these same practices we are trying not to erase.

With a deeper understanding of whether and how past practices reflect or constitute restorative justice, practitioners and scholars are offered more resources to support the inquiry into and development of modern restorative justice practices. An examination of the community-based practices among the Igbo and the Acholi reveals a need for greater critical thinking around the role of community in restorative justice. The analysis also incidentally identifies a need to explore the sensitivity of restorative justice practices when engaging in cross-cultural dialogue. Herein lies the additional value of this work. Identifying restorative justice elements in past practices opens the door to further analysis, offering us an opportunity to better visualize the potential obstacles for restorative justice and to set the agenda for future research.

Associate Professor, University of South Carolina School of Law and Executive Director and Founder, South Carolina Restorative Justice Initiative.