The Transition from Retributive to Transformative Justice

[THE TRANSITION FROM RETRIBUTIVE TO TRANSORMATIVE JUSTICE]

Crime has long been a stable term with a finite definition, but many modern reforms attack the foundation of retributive justice. Following two incidents of children killing children, this paper will examine various arguments made by Nils Christie (2000) and Louk Hulsman (1986) in regards to crime. This paper will describe and analyse the public and political responses to two notorious cases of the killing of children by children, one in England and one in Norway. Using the works of Christie (2000) and Hulsman (1986), I will present the ways in which the cases were discussed as symptomatic of wider social problems, and how differently England and Norway acted, ultimately portraying their respective juvenile criminal justice system. This paper will examine both the similarities and the differences in the reactions to the killings in England and Norway, arguing that while the similarities may be more obvious the differences may be more instructive. On the surface, both seem like similar cases but because of the different geographical locations, they were handled quite differently. This sets up the context of penological arguments about the emergence of a postmodern penality. To start, one must understand the basis of Christie’s (2000) and Hulsman’s (1986) theories respectively.

Nils Christie (2000) argues that a nation’s extent and level of punishment is a normative question. In criminology, the term normative defines the structures within culture which help regulate the proper function of society. These structures encourage and enforce valued social activity and discourage negative acts. Punishment is normative because crime control executives and decision-makers are both free and obliged to choose how far punishment will go. The argument Christie (2000) raises is that contemporary crime control values the prison-industrial complex (expansion, big business, and continued incarceration) because society fears any alternative. Although from one normative value position, the purpose of crime control may be to repress crime; Christie (2000) views the same crime control as a lucrative for-profit industry that does a very poor job at anything except incarceration, namely reform and rehabilitation. Christie believes crime should be handled within the community with the immediate actors involved. He defines Norway as a joint moral community, which will be further examined later in this paper.

Similarly, Louk Hulsman (1986) agrees that crime is more than just what society labels it as. He argues that crime has no ontological reality and is not the object but the product of criminal policy.(p.35) Hulsman’s (1986) ontological critique of this supposed innate existence of crime comes from his refutation of the idea that society, in order to govern negative impulses, should resort to a centralised system capable of not only defining what is right and wrong, but inflicting the resulting “solution”, which is actually nothing more than violence, the suppression of freedom, and at times even death. The rational solution is to abolish the penal system, starting with replacing the language it uses and creating proper and sound definitions, especially of what entails good and responsible behaviour. Abolitionists would then go on to deconstruct criminal justice institutions (courts, prisons, etc.).

Criminalisation is one of the many ways to construct social reality. Laws and rules help create boundaries for society. However, these definitions and solutions of crime are created by the different components of the criminal justice system and hardly ever serve real people involved (victims and offenders). Thus for Hulsman (1986), the task is then to study the problematic situations and to identify the contradictions at the heart of the various criminal justice systems. (p. 35) This is extremely radical as it revokes interest in the long standing issue of what causes of criminality. Instead, it totally refutes crime as real, stating that it is created by society’s morals and values and is reflected within legislative measures. This is why Hulsman (1986) claims crime has no ontological reality and is not the object but the product of criminal policy. (pp. 34-35)

The two crime cases being analyzed are of James Bulger from England and Silje Raedergard from Norway, who were both young children murdered by other children. In regards to these cases, the children in both cases were punished differently based on the decision that the community made as a whole, reflecting its respective morals and values. In terms of Christie’s (2000) argument of joint moral community, the killers of Silje Raedergard in Norway were dealt with more liberally. Christies argues that this joint community means that the decisions made in terms of the punitive system, as well as how offenders are punished, are agreed upon by the community and immediate actors. The individuals within this community are forced by close proximity to communicate with one another in terms of how to deal with offenders, as well as means of appropriate punishment. As a result, decisions are made in relation to the community members attitudes towards the offense. Furthermore, corrective measures can be more responsive and specialized to local conditions. In the Raedergard case, based on this joint moral community perspective, these two young boys were not seen as criminals, rather as victims. The same cannot be said for the Bulger case where the offending children served eight years for their crimes.

With regard to Hulsman’s perspective of crime, both of these cases involved corrective strategies; however, both cases varied significantly based on the fact that the crime only happened because society labelled it as crime. Hulsman would argue that there are other factors to look at as a young child cannot be held responsible for their actions. The ulterior motivating and aggravating factors are the problem, not the naive children who did not know any better. In conclusion, the physical crimes were very similar between the Bulger case and the Raedergard Case; however the punishments differed as a result of the effects that it had on the community, as well as based on the punishments and severity that each respective society deemed appropriate. Finally, this paper analyzed popular penal abolitionist’s work in Christie and Hulsman against the two cases to show how each were treated.

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