on psychopaths. The theory does, however, raise other interesting issues. First, is
there a difference between censure and reform? If censure is (re-)education, then
why punish at all? Second, is it the correct role of the state to motivatepeople to
behave in certain ways? Certainly, the state can coerce behaviour but can, or should,
it coerce thought? Deterrence motivates but leaves open the reasons why people
respect the law, whereas censure implies obedience for the right reasons. Third,
what kind of punishment is appropriate? It may be that ‘naming and shaming’ is
more effective than incarceration. Fourth, is censure too subjective? Left to the ‘court
of public opinion’, people guilty of relatively minor sexual offences might be lynched
while the popular British train robber (and small-time crook) Ronnie Biggs
(1929–2013) would have been given a knighthood by the Queen.
Another idea is ‘restoration’, or restorative justice. In fact, we can distinguish
two quite distinct ideas – restitution and restoration. Restitution entails an
individualistrelationship of lawbreaker to victim, whereby the former must make
restitution to the latter, while restoration is more concerned with repairing a social
relationship, with implications beyond the immediate lawbreaker/victim one. The
two theories are justified from very different philosophical premises: libertarian
(restitution) and communitarian (restoration). But they do share certain
characteristics: (a) a strong focus on the victim of crime (the ‘forgotten person’ of
traditional theories of punishment); (b) an emphasis on ‘making good’ the original
action (this is slightly different to retributivism); (c) a challenge to the distinction
between civil and criminal law (but there is a basis for bridging the distinction in
tort law – for example, careless driving causing personal injury).
Randy Barnett defends the idea of restitution and challenges the existing
‘paradigm’ of punishment, which he argues is based on an outdated ‘sovereignty’
model of the state. Crime, he maintains, entails harming an individual, not the state
or community (Barnett, 1977: 287–8). He notes that restitution plays a minor role
in existing law, taking the form of relatively small cash payments to victims. This
is inadequate, because it comes mostly out of tax; is discretionary rather than a
right; is needs-assessed; is limited to certain crimes; and, finally, is assumed to be
compatible with traditional theories of punishment. Barnett wants a complete
‘paradigm-shift’ to restitution: ‘the idea of restitution is actually quite simple...
it views crime as an offense by one individual against the rights of another’ (Barnett,
1977: 287). The robber did not rob society, he robbed the victim.
Restoration, on the other hand, tends to be a grounded in a communitarian,
rather than an individualist, theory of society. Communitarianism encompasses
philosophical theories that stress the communal nature of the self and more
sociological theories that emphasise the importance of social ties (social capital;
social ecology) in legitimating the political order. Advocates of restorative justice
argue that traditional penal policy sees crime as primarily an offence against the
state, whereas it as an offence against the individual and community, meaning not
an abstract, but a concrete, community such as one’s neighbourhood. Traditional
theories of punishment take conflicts out of the hands of individuals and
communities and ‘professionalise’ them. Restorative justice policies and projects
usually involve an independent mediator, who need not be a judicial figure. As with
retributivism, emphasis is placed on personal responsibility but hard treatment for
its own sake is rejected. Along with consequentialists an emphasis is placed on good
outcomes, although recognition of the past is important. The main features of
Chapter 7 Punishment 151