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Shame, forgiveness, and juvenile justice.

The question of how best to deal with juvenile delinquency, and with crimes committed by young offenders, raises wider issues. Debates about juvenile justice are rarely concerned only with young people and are rarely confined to questions of managing the criminal justice system. Historically, "policies concerning deviant children have been at the moral center of debate over crime, poverty and education."(1) The question of whether, and how, the state should punish deviant children raises further fundamental questions in moral and political philosophy. It raises a question about the appropriate balance between retribution and rehabilitation--or indeed, about whether either of these approaches is adequate. It raises a question about the divide between a public sphere governed by common and statutory laws and a private sphere governed by family rules. It is part of the debate about the relationship between rights and obligations.

In addition, juvenile justice has been a testing ground for criminological theory. Smaller-scale explanations of crime, focussing on psychological or social variables, have been tested empirically with increasingly sophisticated data analysis as the criminology industry has expanded. Young people have regularly been the subject of such tests. After several decades of research, there is still no clear consensus on whether juvenile delinquency is primarily a symptom of inadequate internal self-control or whether it is primarily a symptom of inadequate external social control. Hence the renewed call for an interdisciplinary approach in criminology.(2) An interdisciplinary approach would seek to transcend this impasse between sociology's "over socialized conception" of the individual and psychology's focus on fixed character traits.(3) It would seek to understand better the system of social and political rules within which individuals interact. It would give as much weight to human passions as it does to human reason. A successful interdisciplinary approach to juvenile justice would, in other words, seek to overcome the divide between the social sciences and the humanities; it would integrate recent advances in psychology and sociology with contemporary thinking in moral and political theory. One would expect proposals for public policy to flow from an integrated theory of this sort.

In this paper, however, I intend to proceed in the reverse order. I am not proposing to integrate existing theories and then to suggest new public policies in juvenile justice. Rather, I wish to describe an existing model of dealing with young offenders and then to consider its broader implications. As with earlier debates about juvenile justice, the issues raised by this model of dealing with young offenders extend more generally to criminology, moral philosophy, and political theory.

The Family Group Conference in Theory and Practice

The core of the model at issue here is currently operating throughout New Zealand/Aotearoa. It has also been introduced in a modified form in parts of Australia. Its central component is a process known as the Family Group Conference (F G C). When New Zealand's national parliament passed legislation in 1989 adopting the Family Group Conference process for dealing with young offenders and their victims, one of its primary aims was to achieve a system of justice that was culturally appropriate to the country's Maori and Pacific Island Polynesian population.(4) However, the process would appear to be broadly applicable to virtually any juvenile justice system.

The basic design of the Family Group Conference is disarmingly simple. A young person who has committed an offense against an identifiable victim is brought face to face with that victim. (There may be more than one offender or more than one victim; a single conference deals with the effects of the offense.) Both offender(s) and victim(s) are accompanied by family members, guardians, peers, or other people with a significant relationship to the offender or the victim. These people are collectively referred to as "supporters;" they may contribute to the search for restitution and to negotiations for reparation of the damage caused by the original offense. It is this insistence on collective, community involvement in the search for reparation that sets the Family Group Conference model apart from reparation schemes run in Britain and the United States since the 1970s.

The Family Group Conference is convened by an official of the justice system. This will be a police officer, a welfare worker, a representative of the juvenile court, or a representative of the justice department, depending upon the jurisdiction in which the conference is being convened.

The point at which the Family Group Conference is convened within the juvenile justice process also varies from jurisdiction to jurisdiction. Following the 1989 legislation in New Zealand, most juvenile offenses that warrant formal cautioning are now settled within Family Group Conferences. Only serious indictable criminal matters proceed first by way of charge. The conferences are run by a Youth Justice Coordinator, this office having been created by the 1989 legislation. Of the related alternative programs that have been introduced in Australia, the most notable are in South Australia and New South Wales. The first of these, and the model that has attracted most attention in Australia to date, was established in the New South Wales city of Wagga Wagga during 1991. Accordingly, it has become known as "the Wagga model." Although it is based on the Family Group Conference, the Wagga model differs from its New Zealand counterpart and other related models in several respects.

The first difference is that in the Wagga model the Family Group Conference is coordinated by a police officer at the local police station. In other models, the conference is coordinated by an official of the justice department, welfare department, or juvenile court either at the offender's home or in some other official setting where the focus would normally be on the young offender.

An altered focus is the second difference between the Wagga model and related schemes. The Wagga model does not focus on the offender. It focusses, instead, on the harm caused by a particular offense. Thus, it is not entirely accurate to contrast it with most other processes in the criminal justice system by calling it a "victim-centered" model.(5) Since all those in attendance at the Family Group Conference have been affected by the offense, it is probably most accurate to see the process as neither "offender-centered" nor "victim-centered;" rather, it is "community based"--in a way that invests the term "community" with real meaning.

This focus on community points to a third difference between the Wagga model and other models that use the Family Group Conference process. Because young offenders are dealt with in a Conference at their first point of contact with the criminal justice system, the Wagga model is truly diversionary. A panel of police sergeants, acting with the full support of the local Community Consultative Committee, decides, within fourteen days of an offense being committed, whether the matter should be dealt with in a Family Group Conference. They are entitled to use their discretion in the matter according to the State Police Commissioner's instructions on juvenile cautioning.(6) The sergeant who coordinates a subsequent Family Group Conference may later direct conference participants to seek any professional help they feel they may need. If the Conference is successful, police can be seen to have acted not only as gatekeepers of the criminal justice system but, more importantly, as coordinators of the social justice system.(7) In the process, police meet the demands made by critics of therapeutic professionalism and of excessive policing. Both groups have been calling, for several decades, for the net of state controls over young people to be narrowed; the Family Group Conference helps to ensure that this narrowing of the net of state control does not produce a dangerous social vacuum. As the net of state control is narrowed, the net of community or civic control is widened.(8)

This sort of terminology is familiar to police who have been involved in the establishment of the Wagga model, and the reason for this familiarity is that the scheme has been grounded, from the outset, in contemporary social theory. Here is a fourth difference between the Wagga model of juvenile justice and other models that currently use the Family Group Conference. The Wagga model starts with a broad general theory that explains why its key processes should work. The single most important contribution here has been John Braithwaite's theory of reintegrative shaming, which posits both "the effectiveness of reintegrative shaming, and the counter-productiveness of stigmatization in controlling crime."(9) Braithwaite has argued convincingly that the twin "informal" controls deterring most people from offending against their fellow citizens are "social disapproval" and "pangs of conscience."(10) The Family Group Conference offers a controlled, ritual setting in which these informal controls can be strengthened. The conference is neither punitive nor rehabilitative. Rather, it is primarily educative. In the conference setting, the twin controls of external disapproval and internal conscience can be strengthened. This is done without either stigmatizing the offender--as many other options within the criminal justice system are designed to do--and without fostering egocentricity in the offender--as all the agencies of the criminal justice system unwittingly conspire to do.

Just as importantly, in the setting of the Family Group Conference, victims can work through the emotions of shame and anger caused by the offender's actions. Although they are under no obligation to do so, victims almost invariably forgive the offender. The psychosocial theories of researchers such as Suzanne Retzinger and Thomas Scheff, the psychological theory of Silvan Tomkins and Donald Nathanson, and the moral philosophy articulated by Jean Hampton and Jeffrie Murphy have helped to explain why these processes occur.(11) Their theories, in turn, are being used to refine the model and to explain its dynamics in greater detail.

During its first two years of operation, the Wagga model has proven politically successful. In contrast to its New Zealand counterpart, the model was implemented locally rather than nationally.(12) At the local level, it quickly gained support from victims, offenders, their families, and other supporters. It has also generally been supported by local officials, whether they be police, welfare workers, members of the legal profession, or teachers. The model is now gradually being introduced in other parts of the state and other parts of the country. Comparisons with other models for dealing with young offenders are difficult not only because of the enhanced role the Wagga model gives to victims but also because it is as concerned with collective responsibilities as it is with individual failings. While rates of recidivism appear to have fallen dramatically within the Wagga Wagga district, advocates of the model are loathe to defend the scheme primarily on this basis. Firstly, a longitudinal and comparative study, such as is now being conducted under the auspices of the Australian Institute of Criminology, will need to be completed before methodologically defensible data on recidivism are available. Secondly, and more importantly, any focus on recidivism rates alone tends to distract attention from the other important aspects of the model: its concern to find collective solutions to the damage caused by juvenile offending; its concern not to allow emotions to be hidden by the cool voice of rational judgment; its concern with the moral values linked to justice, values such as self-esteem, civility, and reciprocity.

These are all issues which some of the more significant works in criminology, moral philosophy, and political theory have addressed in recent years. I would like now to address the reciprocal relationships between these general theories, on the one hand, and, on the other hand, the local practice of using the Family Group Conference for dealing with the consequences of juvenile offending. The most influential of the theories informing the model has been proposed by John Braithwaite. It seems appropriate, therefore, to begin this survey with a discussion of the implication of Braithwaite's model for contemporary criminology and, specifically, with a discussion of this attempt to apply Braithwaite's theory in practice.


The intellectual project of John Braithwaite and his colleagues, which has strongly informed the model of juvenile justice at issue here, can be seen to have two main strands. It has involved, firstly, a critique of the dominant traditions that have informed modern criminal justice policy. Deterrence, incapacitation, and rehabilitation are all seen to have been less than successful.(13)

Public recognition of this failure has led to the social and political movement calling for full-blooded retribution. But this move to reinstate punishment as an end in itself, to abandon policies concerned with the consequential collective benefits of criminal justice policies, has been seen as a dangerous retrograde step. The "neo-classical" intellectual defenders of the intrinsic value of punishment have not been able to mount plausible arguments in support of retribution.(14) Less partisan philosophers find the call for just deserts to be driven "by dark and dangerous passions."(15) Pure retribution not only demeans offenders; it demeans us all. Those who are critical of both traditional utilitarian doctrines and neo-classical theories extolling the virtues of punishment are faced with the task of finding a third way. What is needed is a social theory that can explain convincingly the causes of crime and can suggest alternatives to the hitherto dominant traditions. The utilitarian tradition has rightly been described as on strong footing in its consequentialism but "having great difficulties in its value theory."(16) The retributivist paradigm, always claiming to be strong on morality, is weak on logical rationale. Any alternative to these two traditions needs to be not only intellectually convincing but also strong on values. This, then, has been the first part of Braithwaite's project: to produce a convincing theory of crime causation that both takes account of shared values and suggests new policies for crime prevention. This is the explanatory part of the project.

The second part of the project is normative. It involves constructing a political philosophy to support the policies suggested by the theory of crime causation. The resulting work has been discussed in an earlier volume of this journal and will be discussed further below.(17) In this section, I want to concentrate on the theory of crime causation and prevention outlined in Crime, Shame and Reintegration.

It is appropriate that shame is the central term in the title of the book, since shame is the key factor in the theory. In introducing this affect into a theory of crime causation and prevention, Braithwaite has broken with the dominant trends of criminological theory over the last two decades. Not a few perceptive philosophers, sociologists, psychologists, and political theorists had begun to focus on shame as "the moral feeling par excellence," "the emotional aspect of disconnection between persons," or the "most social of all emotions."(18) In criminology, however, the emerging tendency durign the 1970s and 1980s had been to despair of agreeing on a satisfactory theory of crime causation. Increasingly, theorists and officials opted for strategies of situational prevention and opportunity reduction. Rather than abandon the search for a plausible theory of crime, however, Braithwaite seeks to rescue the middle-range criminological theories of the 1950s and 1960s from the unconvincing criticism of both the "progressive" critical criminologists of the 1970s and the "conservative" neo-classical criminologists of the 1980s. Theories of social control, of labeling or stigmatization, and of subcultural learning all had something to offer but lacked an integrating factor. They also failed to explain adequately some types of crime, such as white-collar crime. They failed to explain rising crime rates in the industrialized nations since the Second World War, and they failed to explain the marked differences among the crime rates of those countries. The theory presented in Crime, Shame and Reintegration suggests that the dominant explanations of these phenomena and the dominant policies designed to deal with them are all based on an ideology of individualism. Modern formal criminal justice systems are constructed on a model of the state intervening to correct the behavior of calculating, rational individuals who have made socially undesirable choices. The theory of reintegrative shaming, in contrast, emphasizes the interdependency of individuals. It identifies shame as the emotion that regulates this interdependency. In a society where interdependency is well regulated, through the use of appropriate shaming practices, the number of illegal anti-social acts--the rate of crime--should be low. The theoretical problem of modern criminology, its inadequate attention to social interdependency, thus reflects a deeper problem in the Western approach to crime and punishment. The fundamental problem is that there has been "a systematic uncoupling of punishment and public shaming."(19) That popular slogan of criminology during the 1970s, the slogan that "nothing works" in criminal justice, was thus superficially right and profoundly wrong.(20) If Robert Martinson's claim applies to models of state intervention that are designed to manipulate individual behavior through soft therapy or hard punishment, then it is generally an accurate statement. The feature common to rehabilitative and retributive models of criminal justice is their reliance on state officials who locate the source of the problem within the offender. This, of course, was a point made long ago in Kafka's parables, and it is the core of truth in Foucault's often implausible writings. The profound error in the claim that nothing works is the implication that there is no acceptable or effective alternative to a system wholly reliant on bureaucratized, instrumental state power in its dealings with the problems caused by crime and incivility. This theoretical and practical impasse has recently prompted "the revival of the liberal discourse of eighteenth century jurisprudence [and] the reemergence of basic moral and organizational questions" about the justice system.(21)

The reasons why theorists and practitioners of the justice system reached this impasse are complex. Braithwaite suggests that one influential factor has been that the professionalization of the study of crime may be "part of a wider societal movement which has tended further to debilitate the social response to crime."(22) The institutionalization of criminology in the academy has probably contributed to the problem as, no doubt, has the tendency to polarize into political camps in any debate on crime. Thus, the "left" have tended to explain crime in terms of social and economic deprivation and oppressive or excessive control by state agencies of criminal justice. The "right," meanwhile, have generally continued to insist that the problem is essentially biological but exacerbated by inadequate parenting and moral relativism.(23) Among criminological theorists, Stan Cohen probably made the most articulate break with this inadequate ideological mold.(24) By the end of the 1980s, some sort of new consensus could be seen to be emerging. Much of it did indeed, as David Garland has noted, share many of the concerns of eighteenth-century jurisprudence. Such concerns had been debated in an age before politics and economics were artificially separated from moral philosophy. The new consensus included a rejection of philosophical individualism and renewed support for some version of the family but a warning by some that "it is too dangerous to leave the production of individual character to the whims of parents alone."(25) The emerging consensus, in other words, was towards a model of crime prevention that was neither retributive nor rehabilitative. What was seen to be needed, instead, was a model of early intervention that was primarily educative.(26) This general tendency in the theory was subsumed under the title of "social crime control." But if the theory sounded good, many were justifiably skeptical that real practical programs to strengthen informal social control could be designed and implemented.(27)

In identifying shame as the emotion that regulates the bonds between interdependent individuals, Braithwaite and other theorists interested in the role of shame are suggesting that practical, effective programs are available. These programs must be strong on values such as mutual respect and civility. "You cannot take the moral content out of social control and expect social control to work."(28) The problem here is that the focus of modern legal systems on technical issues of guilt has indeed tended to take the moral content out of social control. Shame is seen as the affect that can revive and maintain this moral content.

Those advocating the conscious use of shaming practices can expect a range of objections to their proposed programs. Of the two most significant objections, one is essentially political, the other more concerned with psychological and social theory. A political objection may be raised both by philosophical liberals and by those whose thinking on these matters bears the influence of Michel Foucault and other "theorists of power." Liberals raise the concern that a renewed focus on civic duties and collective responsibilities may serve to undermine the individual rights that are the hallmark of liberal political and legal systems. This is an important concern, but it is by no means clear that emphasizing civic duties does threaten individual rights. On one reading, emphasizing duties can work to protect individual rights.(29) This issue is, of course, at the heart of the debate between liberals and communitarians, a debate that has reinvigorated political theory since the publication of John Rawls's A Theory of Justice. The link between this debate and the "rediscovery of shame" will be discussed below. We need first to consider the other group of objections to the notion of using shame in social control. We need also to assess the implications for psychological and social theory of the rediscovery of shame.

Political objections to the conscious, strategic use of shame are raised not only by liberals but also by those "theorists of power" who find inspiration in the writings of Michel Foucault. These writings, much as they have prompted important debates in sociology and historiography, nevertheless contain two fundamental conceptual flaws. They imply a vast, unified state that, through some sort of collective consciousness, conspires to deprive its citizens of freedom. Secondly, and more importantly, the power exercised by the state is always seen as repressive. Power in Foucault's writings can only be something negative. There is no room, in thinking influenced by these writings, for the positive exercise of power. Any program that proposes the constructive mobilization of social power will thus inevitably be criticized by the ghost(s) of Foucault. Fortunately, a defense against this weak attack has been well constructed elsewhere.(30) These, then, are the major political objections to the use of shaming practices for social ends.

The second major objection to the conscious instrumental use of shame may be found in psychological and social theory. Anthropology long made the distinction between shame cultures and guilt cultures. In the simplified version of the theory, small-scale, pre-industrial collectivities were regulated by the use of shame, which is thus a pre-modern emotion. Guilt, by contrast, is seen to play the more significant role in a modern world governed by rational, instrumental rules and regulations. Guilt has more to do with objective information concerning the transgression of rules. Shame has to do with subjective feelings. It signifies a breaking of social bonds, a change in the relationship between individuals.

Related to this anthropological notion that shame is somehow anachronistic has been the prevailing belief, in psychology and sociology, that shame is also a negative emotion. In the work of influential nineteenth-century theorists--Darwin in Britain, Nietzsche in Germany, Soloviev in Russia, Ellis in the United States--shame was still a key to understanding social interaction.(31) However, in twentieth-century social theory--and some blame Freud for this--"guilt has been a more popular construct" than shame.(32) In order to reinstate shame in what is seen as its rightful place at the center of social theory, Braithwaite and others have made a clear distinction between two types of shame. Just as Foucault and friends have seen the exercise of power as a purely negative phenomenon, so many theorists and practitioners have seen certain emotions, including shame, as being only negative or destructive. But power can be used for either positive or negative ends, and emotions can produce either constructive or destructive behaviors. To make this distinction between positive shame and negative shame, Braithwaite talks of reintegrative shaming, on the one hand, and of stigmatization, on the other. The former, as the term suggests, seeks the social reintegration of a person who has committed a shameful act. It does this by making a clear distinction between an unacceptable act and the person who has committed that act. Strong social disapproval is directed at the act without degrading or stigmatizing the actor, without actually casting the person out and separating him or her from the community. Stigmatization, in contrast, does seek to separate a person who has committed an unacceptable act from the community against which he or she has offended. Modern criminal justice systems achieve this separation symbolically, through "successful degradation ceremonies."(33) They also achieve it literally, through incarceration and, in the extreme, through the death penalty.

The shame that people associate with modern criminal justice systems and with the exercise of state power for social control is, indeed, a socially destructive shame. It is a shame caused by the public linking of offender and offense. It is thus more accurate to call it stigmatization. Criminological theorists have preferred the term labeling. But labeling theory paid attention only to the application of negative labels to offenders; it failed to look at ways in which such labels might be removed. Its focus was on ritual social exclusion, not on ways in which social reintegration occurred and on ways in which it might be fostered and encouraged. The reintroduction of shame into criminological debate is seen as the way to link theories of labeling, of social control, and of subcultural learning. Shame, which was both removed from criminal justice practice and overlooked by criminological theory, is now presented as the way out of the impasse signified by the despairing cry that "nothing works." And the fact that shame is not only being "rediscovered" in criminology but also in moral philosophy and political theory is highly significant. Critics of much recent criminology locate the source of the problem several decades back, in the expansion and professionalism of the study of crime. The division between psychology and sociology, and the understandable fascination of both disciplines with quantification, has tended to obscure the basic integrity of social experiences.(34) Mind and body, environment and physiology have been separated for the purpose of statistical analysis. The recent resurgence of interest in the American pragmatic philosophers and in symbolic interactionist theory shows a recognition of this oversight.(35) Criminological theory is seen to have taken a wrong turn several decades back towards an overly compartmentalized methodology. Its social theory is seen to have focussed excessively on individuality rather than interdependency and on cognition rather than emotion.

In criminal justice practice, however, the wrong turn seems to have been taken some time in the eighteenth century. The separation of punishment and constructive, reintegrative shaming seems to be associated with the development of the modern liberal nation state and with the related ascendancy of utilitarian theory. We are, of course, well rid of most earlier methods of punishment, and their abolition is rightly counted as one of liberalism's many victories on behalf of individual rights. But the apparently inexorable process of institutional rationalization, which has gradually reduced the degree of ritual shaming in the criminal justice system, has failed to distinguish between good and bad shame. It has failed to distinguish between reintegration, on the one hand, and stigmatization and degradation, on the other. And if criminologists should return to questions raised in the debate between the early liberal and utilitarian theorists, it is to that same debate that both moral philosophers and political theorists have turned in recent years. Their interests are obviously related and they seem to share concerns about classical liberalism, or at least about the way in which the proponents of classical liberalism have subsequently been interpreted.

The first of these shared concerns is the familiar one that, in the desire to protect individual rights, classical liberalism painted a picture of isolated individuals pursuing their self-interest at the expense of social duties and obligations. The second concern is that liberal and utilitarian theorists, in the search for a rational and orderly system of governance, may have encouraged the development of institutions that strive for rationality at the expense of morality. In this simplified (indeed oversimplified) view, classical liberals and utilitarians are seen to have favored safe and modern rationality over dangerous, pre-modern passions. But the rationalization of politics is seen to have had a debilitating influence on civil society because it has led to responsibility for social regulation being ceded to the state.(36) The renewed interest in the emotions that regulate social interaction comes at a time when the focus of political debate "has migrated back to the sphere in which it first emerged--that of civil society."(37) Programs to use shame as a means of shifting responsibility for justice back to the community can thus be seen as part of a broader trend towards wider public participation in politics. Unlike some earlier utopian theories of participatory democracy, however, more recent programs are based on a convincing theory of individual psychology and social interaction; they are also decentralized and gradualist. Programs utilizing the theory of reintegrative shaming fit this pattern.

Having offered an integrated explanatory theory of crime causation in Crime, Shame and Reintegration, Braithwaite has subsequently co-authored a normative theory to justify policies that make use of reintegrative shaming. This theory, outlined in Not Just Deserts, is described in the book's subtitle as "A Republican Theory of Criminal Justice," but its concerns may be more recognizable as those of communitarianism. Before considering the place of the theory of reintegrative shaming in the debate between liberal and communitarian theorists, however, it is important to consider in some depth the values linking the explanatory theory of reintegrative shaming with the related political program. Recent research into the psychology of shame and into the sociology of apology and forgiveness points in much the same direction as do some of the more interesting recent debates in moral philosophy. These debates provide the link between the social science of criminology and the political program of justice system reform. Offering balance to the implicit consequentialism of social science and politics, these philosophical debates ask questions about basic values.

Moral Psychology/Moral Philosophy

The shared concern of contemporary philosophy and psychology to better understand shame arises from the fact of shame being an "emotion of self assessment."(38) Shame, indeed, is seen in many accounts as the most fundamental of this family of emotions. Pride is the only emotion that may have comparable power.(39) If we can detect a consensus in the literature, it is that pride and shame both play a key role in defending personal integrity and self-respect. Both emotions also play a role in assessing the social standing of the individual. Pride and shame are thus not only inward-looking but also outward-looking; they are personal but also social emotions. Because they involve an assessment of personal integrity and social standing, pride, shame, and the other emotions of self-assessment can be seen as "states of belief and not just feeling."(40) They involve both mind and body but not the minds and bodies of isolated, wholly autonomous individuals. Rather, the emotions of self-assessment involve the minds and bodies of individuals who are socially interdependent.

Increasingly, a biological metaphor is used to describe the role of the emotions of self-assessment. Shame, pride, and other related emotions are seen as potentially homeostatic; they are part of a regulatory mechanism that can not only maintain an individual's emotional equilibrium but also regulate social interaction between individuals. An earlier collective recognition of the role played by these emotions doubtless helps to explain why, during the long-term shift in sensibilities so admirably charted in works such as Norbert Elias's The Civilizing Process, excessive displays of pride, shame, or anger have been strongly discouraged.(41) Recent concern to better understand these emotions shows a recognition that this "civilizing process" may, in one sense, have gone too far. Political and legal institutions based on formal laws and intellectual abstractions, may have dispensed not only with the destructive aspects of emotions such as pride, anger, and shame; they may also have dispensed with the positive, constructive aspects of these emotions.(42) A clear distinction between cognition and emotion has too readily been assumed. This is an overly artificial dualism. It has nevertheless been dominant in modern social and political theory until very recently.

It has been largely assumed, for instance, that people become moral agents by exercising rational judgment in an ongoing process of "testing and criticism, self-criticism and reconstruction."(43) People's sense of justice thus develops over time as they come to understand the social utility of justice. Thus, following Hume, "justice is an artificial virtue."(44) A sense of morality and a concern for justice are seen as essentially rational judgments. As in criminology, so in moral philosophy and political theory, the typical subject is generally seen as an autonomous, rational, calculating individual. This view of the subject rests on some basic assumptions about moral psychology and about contemporary social relations. It assumes, firstly, that the emotional system of children, regulated by gestural communication, is largely replaced during the passage to adulthood by rationality. Social information is thereafter conveyed by the symbolic system of language.(45) Secondly, the model of the rational individual subject assumes a social environment governed by principles of justice, and this just environment, in turn, encourages individuals to develop a concern for justice. Such a view takes for granted, in other words, the existence of functional families.(46) This view about the development of moral agents with a concern for justice assumes thirdly, a relatively well-ordered society in which justice and fairness prevail.(47) Criticism of all three assumptions has been leveled at the most influential modern theory of justice, that of John Rawls. The critics are generally supportive of Rawls's philosophical project, but they offer constructive criticisms. These criticisms may be reduced to what is, in effect, one fundamental feminist criticism. Rawls's mechanisms for determining the most just organization of society--the mechanisms of the original position and the veil of ignorance--have the effect of obscuring the fundamental division of gender.

Contemporary feminism, having made the distinction between equality and equity, is now interested in the social and political implications of gender differences. This brings us to the first of the three recent criticisms of modern social theory in general and theories of justice in particular. It is a criticism aimed at social theory that sees moral development as a process whereby rationality gradually overrides emotions. According to such theories, individuals achieve increasingly abstract levels of reasoning about morality. This tradition, building on the work of Piaget, and more recently associated with the formal models of Lawrence Kohlberg and Jurgen Habermas, has been criticized as a model that is biased towards the moral development of males. In the formula of Carol Gilligan, the development of a sensitivity to rights is only one aspect of moral development; a sensitivity to needs is equally important.(48) Gilligan's original critique of cognitive psychology exaggerated the difference between the moral development of boys and girls. Her more important point remains. We need to define morality in a broad sense, rather than focussing exclusively on abstract justice. Perhaps the most useful definition of morality sees it as the interplay between justice and love. The former is abstract, general, and impartial; the latter is concrete, specific, and partial.(49) Gilligan's call for a broader definition of morality is actually supported by recent research in social cognitive development, research showing that young children have an intuitive grasp of reasonably sophisticated moral concepts. Emotional understanding of morality may, in other words, precede an intellectual understanding of morality. The emotional is, nevertheless, moral.(50) Using a mix of emotion and cognition, the just family will achieve a balance between the blindness of justice and the blindness of love.(51)

Many theorists, however, have too readily assumed the unproblematic existence of the just family. This is the second recent criticism of much modern political theory. Thus, Susan Moller Okin, in Justice, Gender and the Family, praises Rawls for "alone ... among major contemporary theorists of justice [treating] the family seriously as the earliest school of moral development" while at the same time she criticizes him for failing to explain the assumption that family institutions are just.(52) Her more general--and blunter--critique is that "major contemporary Anglo-American theories of justice are, to a great extent, about men with wives at home."(53)

Okin's critique of the tendency to theoretical abstraction can be extended beyond the family. This leads to the third general criticism of some modern theories of justice and morality: they apply abstract theories of justice to societies that are neither particularly wellordered nor reasonably just.(54) In the specific case of criminal justice, such criticism was perhaps best captured in Anatole France's famous quip about the law which, in its majesty, forbade rich and poor alike from sleeping under bridges. It is a criticism, in other words, that is neither particularly new nor particularly enlightening--although it seems to have sustained the critical legal studies movement for some time.

The two earlier criticisms, however, are significant. They represent not only the point of convergence between contemporary psychology and moral philosophy. They also point the way to programs that put more social justice into criminal justice or rather, they suggest programs that expand the social justice system. To reiterate the two key points made by these critiques: first, we have overlooked the role of emotions, or passions, in regulating social conduct; second, we have paid insufficient attention to the means by which moral responsibility is learned, practiced, and strengthened. Any contact with the criminal justice system should be seen as a failure of these methods. The task is to use what is known about the emotions of self-assessment--whether this is new knowledge or reacquired wisdom--to design mechanisms that strengthen social bonds. Such mechanisms will take account of the sociology of apology and the psychology of forgiveness. The Family Group Conference is just such a mechanism. An elaborate explanation of why it works can be constructed from the insights of contemporary moral philosophy.

Much of the reason why moral philosophy or ethics is so valuable here is that, in philosophy, the dominant model for human motivation has been internalist. Moral motivation is seen as coming from within, as being innate. The social sciences, in contrast, have favored an externalist account of human motivation; they have seen ethical behavior as being reinforced by the external threat of sanctions.(55) Modern criminal justice systems are built on these latter, externalist principles. But much cognitive psychology is now shifting away from a simple externalist view. In more sophisticated accounts, moral judgments are not only initially intuitive but remain linked to the emotions of self-assessment even as people learn the language of abstract, rational judgement. Thus, the emphasis in social science is shifting back towards an internalist perspective or, rather, towards a perspective that integrates both internalist and externalist explanations. The latter, for instance, are useful to describe the outward gestures involved in the ritual of apology. And the act of apology is clearly a central part of the process that occurs within a formal setting for constructive conflict such as a Family Group Conference. To explain the response of a wronged party to apology, however, we also need a sophisticated internalist explanation. Otherwise the gracious response of forgiveness to an apology seems paradoxical--as it does to Nicholas Tavuchis in his insightful study Mea Culpa. Alternatively, forgiveness seems inexplicable because divine--as Herbert Morris has argued in this journal.(56)

Tavuchis's study, which is subtitled "A Sociology of Apology and Reconciliation," finds evidence of "a strong and abiding commitment to a general norm of apology." The paradox of apology, for Tavuchis, is that it cannot undo the damage of a harmful act and yet "in a mysterious way ... this is precisely what it manages to do."(57) The act of apology is a "relational symbolic gesture, ... the middle term in a moral syllogism that commences with a call and ends with forgiveness." The syllogism can be completed, however, only if the apology expresses genuine sorrow and if the person offering the apology renounces all defenses. This includes renouncing the defense of being "child-like," of lacking moral responsibility and thus not belonging to the moral community.(58) If the ritual of apology and forgiveness is completed, it offers the prospect, to use Braithwaite's terminology, of social reintegration in the wake of an offense.

Tavuchis is confident that reintegration can result from interpersonal apology and forgiveness. He is less confident that it can be achieved in other configurations: in apology from one person to many people, apology from many to one person and in apologies between two collectivities. Tavuchis also suspects that the mediation of a third party in a ritual of apology and forgiveness may undermine the process. Now the Family Group Conference model would seem to be open to both of these criticisms. First, it not only involves apology from an individual offender to an individual victim. It also involves a collective apology from the offender's supporters both to the individual victim and to the victim's supporters. Furthermore, it involves an apology from the individual offender to the victim's supporters. The Conference involves, in other words, all four structural configurations of apology identified by Tavuchis: one to one and one to many; many to one and many to many.(59) It is not just a ritual of interpersonal apology.

The second potential problem suggested by Tavuchis's model is that the Family Group Conference involves third-party mediation. The involvement of the third party, according to Tavuchis, works against a successful resolution for three reasons: mobilization of both parties to the original dispute "signals impasse, intransigence and antagonism on the part of one or both principles;" the third party cannot be "neutral and merely a catalyst;" and finally, the participation of people who were not party to the original dispute or offense "shifts attention from the original trespass to the moral integrity of the interlocutors, in most cases that of the offender." Shifting attention to the integrity of the offender will foster a defensive reaction from the offender. It will therefore be harder to achieve the required defenseless stance without which the way is not open for forgiveness. Shifting the focus from the original trespass will also foster a punitive atmosphere.(60)

Tavuchis's predictions are perfectly plausible. In our experience to date, however, they have not been realized in the diversionary Family Group Conference model. The overwhelming majority of offenders offer apologies that express genuine sorrow, more accurately called remorse. In turn, these apologies almost invariably prompt genuine forgiveness from the various parties present. To understand why this should be so, one needs to look beyond the account provided by a model of the sociology of apology and seek to understand the moral psychology of forgiveness. What is required is an explanation of how those present in a Family Group Conference seek to defend their self-esteem. In seeking a description of the role played by shame, anger, and pride in such processes, the work of Suzanne Retzinger and Thomas Scheff has proven extremely useful. Their "microsociology" of destructive and constructive conflict builds on Helen Lewis's pioneering work in this area. However, their microsociology needs to be modified to take account of the affect theory of Silvan Tomkins and Donald Nathanson. In this psychological theory, shame is one of nine innate affects, all of which serve to amplify external stimuli. Shame is the key negative affect. It amplifies the experience of failure. The axis of shame and pride is thus the basis of all learning.(61)

When describing the complex roles played by anger and indignation in the process leading to forgiveness, one is confronted by some impressive accounts. However, I can find no single work that surpasses Jeffrie Murphy and Jean Hampton's Forgiveness and Mercy.(62) Aspects of their justification for a retributive response to offenders may be less than persuasive.(63) Nevertheless, their collective account of the internal and external motivations encouraging forgiveness seems to match the empirical evidence from the Family Group Conferences with remarkable accuracy. An extremely useful analytical distinction is also provided by Murphy's contrast between the "criminal law paradigm" of mercy and a "private law paradigm," a paradigm that contains the possibility of forgiveness.(64) This distinction offers an additional framework to explain why the state, with its formalist legal system, cannot hope to achieve the same results in conflict resolution as can civil society. State officials do not and cannot have the same moral standing as private citizens, because they do not share strong emotional bonds with the subject of their attentions. If we understand morality to involve affects as well as cognition, the heart as well as the head--and this is the theme that unites all the works discussed here--then it is clear that civil society has moral resources which the rationalized modern state can never have.

To explain how those moral resources are mobilized in a Family Group Conference, we should start by analyzing the emotional experiences of people who have been affected by an offense. There are, of course, subtle differences in the definitions given to these various abstract nouns. Most contributors to the debate would agree, however, that the primary emotional reactions to a moral offense (which may or may not have been illegal) are all forms of indignation. This emotion is otherwise know as righteous anger.(65) The indignation or righteous anger of the victim we call resentment. The third party's response in relation to an immoral act is indignation at a violation of community norms. The offense represents an affront to the general dignity of the community. The indignation of third parties is, however, less focussed than is the resentment of the victim. The response of the person who committed the offense, and who acknowledges culpability--at least to him- or herself--is a feeling of guilt. This has been described as "the indignation that we have with ourselves when we believe we have acted immorally."(66)

Now the responses of the victim and of third parties are clearly understandable in terms of the paradigm of emotions discussed above. Resentment and general indignation are emotions of self-assessment. They serve to protect the self-respect and the integrity of those experiencing them. Indeed, Murphy has suggested "that [people] who [do] not resent moral injuries done to [them are] almost necessarily lacking in self-respect."(67) But how does a feeling of guilt protect the self-respect and the integrity of the offender? If offenders do feel indignation towards themselves, are they not attacking their own self-respect, undermining their own integrity? Gabrielle Taylor's detailed answer to this question draws on Freud's discussion in Civilization and Its Discontents. Following Freud, Taylor distinguishes between guilt felt in the shadow of some abstract authority, and shame felt in the presence of an audience. The quintessentially social emotion of shame requires an audience. Guilt requires only the knowledge of having transgressed rules. Shame, as the more social emotion, can be experienced vicariously. One can be ashamed of offenses committed by a person to whom one is in some way related. This is not true of guilt. A further important distinction, as Taylor sees it, is that a person experiencing shame does not distinguish between his or her offending self and the offense. A person experiencing guilt, in contrast, makes a distinction between the offense and the intrinsically good self. The experience of guilt, in other words, is not a direct threat to self-respect, nor is it a threat to integrity.(68)

This formula, however, does not present us with an adequate answer to the question of why feeling guilt can work in defense of self-respect. It presents us, rather, with a psychological paradox. Guilt can be protective of self-respect if it allows the guilty party to distinguish between an offensive act and a generally worthy self. But in taking this path, in making the distinction between themselves and their actions, offenders thereby diminish their own standing as moral agents. By failing to take full responsibility for their actions, offenders undermine their own integrity.(69) While defending the worthy self, they recognize "the emergence of a worse self." This is why, according to Taylor--still following Freud--guilt is connected with fear and anxiety.(70) According to this argument, then, guilt felt in isolation cannot protect self-respect in moral conflict. On the contrary, guilt felt in isolation threatens self-respect. Other emotions must play a role.

In Taylor's account, it is remorse that plays this role. Remorse is the obverse of guilt. Unlike guilt, remorse is a moral emotion because it is other--regarding rather than self-regarding. Since it does not encourage self-indulgence, it is a healthier emotion than guilt. Remorse therefore opens "the way to redemption."(71) Now this account bears some similarities to Rawls's account, in A Theory of Justice, of the role of guilt in developing a person's sense of justice. In Rawls's latter version, however, no clear distinction is made between a sense of guilt linked with knowledge of having broken moral rules and a sense of remorse over the effect of that moral transgression on others. Experiencing both guilt for rule-violation and remorse towards others is described as having a sense of guilt. On Rawls' reading, guilt is both self-directed and other-directed.

The differences between Taylor's and Rawls's accounts are partly definitional, and this, no doubt, has something to do with subtle changes in popular and academic usage of the key terms. More importantly, however, the difference raises the question of how a combination of guilt and remorse differs from a feeling of shame. If people experiencing guilt and remorse are concerned about the damage they have caused both to themselves and to others, how does their emotional state differ from that of people feeling shame? Commentators on the phenomena agree that shame is the weightier emotion, the more significant affect. Most also agree that shame and guilt can occur simultaneously. Can it be that guilt is a part of shame? Retzinger's impressive comparison between the two emotions of guilt and shame raises this possibility:

Shame concerns the whole self. It involves sudden exposure of deficiency in one's own eyes as well as in the eyes of the other. In shame the self feels helpless, not in control; the reaction in a shame experience is to hide. In contrast, guilt is about things done and not done. In the guilt experience the self feels in control, intact; the reaction is to do or undo something--to make restitution. The other is less prominent in guilt ideation than in shame. In shame the bond with other cannot be denied; both self and other are involved in shame imagery. In guilt each person can be (or feels like) an island. In an alienated society where individualism is the norm, guilt is more visible than shame. One can be proud of the capacity to feel guilt. Guilt is prestigious; feeling it makes one a moral person. Shame feels disreputable.(72)

This account not only answers the question of how guilt may work to defend self-respect. It also suggests that a sense of guilt might be used to disguise the more widespread influence of shame. Guilt can be used to deny the weighty influence of shame on both the person who committed the offending action and on the people whose relation to the offender causes them vicarious shame. Guilt, in other words, can be seen as part of shame. The latter is not just the weightier emotion. Rather, shame involves several "lesser" emotions--guilt, remorse, indignation, and anger. Shame is all-encompassing. It is not just self-directed and other-directed; it signals damage to the social bonds between self and others. It does not simply combine thoughts and feelings; it shows the distinction between the two to be artificial. It shows deep moral understanding to be simultaneously cognitive and affective.

If guilt can be understood as part of shame, then separating guilt from shame must have significant personal and social consequences. It must help to drive shame underground. This is precisely the historical claim made in a range of recent studies.(73) Explanations for why guilt should have been separated from shame vary. Braithwaite draws from both Durkheim and Weber in seeking a cultural and an institutional explanation for the avoidance of shame in modern industrial and post-industrial societies. Scheff and Retzinger accept a related thesis, proposed by Norbert Elias, that the avoidance of shame is related to the repression of anger.(74) But in late nineteenth century jurisprudence we find an observation that has already linked these two accounts, at least as they relate to the justice system. James Fitzjames Stephen, who has since inspired Jeffrie Murphy's discussion of the retributive emotions, remarks in his history of English criminal law that the law institutionalizes resentment, gives shape to anger, and achieves vengeance on behalf of the wronged.(75) The state, in converting these interpersonal emotions into impersonal laws, met the broader cultural demand to repress anger and its concommitant, shame.(76) The rational legal state, with its just measures of punishment, anticipates and responds to the righteous anger of victims. The state tames anger by institutionalizing it. It assesses legal culpability, then responds with legalistic retribution. In focussing on guilt, however, the formal legal system bypasses shame. The consequences are profound.

If contemporary criminal justice systems bypass shame by focussing on guilt, then the problems of both the retributive and the rehabilitative approaches in criminal justice may be more fundamental than their respective critics have suggested. The more sophisticated recent defenses of retribution, for instance, have seen the theoretical inadequacy of narrow legal retribution and have sought, instead, to defend some form of moral retribution. This moral retribution might serve, in turn, as a form of moral education. But where legal retribution is targeted at the supposedly rational individual, moral education is a collective matter. Furthermore, moral education involves feelings as well as thoughts and ideas. Moral education is achieved as a balance between the blindness of justice, which is impartial, and the blindness of love, which is justifiably partial and biased.(77) The just state can try to deliver impartial, abstract justice; it cannot hope to balance the equation. Only civil society--indeed, only intimate communities within civil society--can provide the social support that gives moral education meaning. The appropriate use of shame in civil society will be far more effective as a means of moral education than will legal retribution within the criminal justice system.

Like retributivist critics, so-called rehabilitationist critics of modern criminal justice systems must also take better account of shame and the other emotions of self assessment. Such criticism from rehabilitationists as has hit the mark in the past may often have done so for the wrong reasons. It has often been claimed, for instance, that the court process is criminogenic because it labels people as criminals; it marks them out and stigmatizes them.(78) Rehabilitation is, however, more elusive if the theories outlined above are valid. The reasons for the criminogenic nature of the adversarial court process are somewhat more complex than the rehabilitationists have suggested. If the court process does sometimes encourage rather than discourage crime, this may not be because the process is excessively stigmatizing. It may well be, rather, that the court process is inadequately moralizing. But this inability to moralize effectively is not a design flaw that can be fixed by procedural changes within the court process. If the critics want effective moralizing--strong disapproval of the offense without the stigmatization of the offender--then the procedures for this must be found elsewhere. The court process, in which the state formally disapproves of the offender's actions, cannot hope to offer moral education.

What is the alternative?

Nils Christie has drawn both strong support and strong ridicule for his suggestion that the state hand back the conflict between offenders and victims to these two parties. Christie's argument is that the state has "stolen the conflict" from the victim, thereby depriving one of the parties of his or her "property" while making a concrete dispute into an abstract transaction between state and offender.(79) Here again, Christie's argument, as it has been popularly understood, may be criticizing the right target without fully explaining why. Certainly, his original argument was in support of victims' rights. But the real significance of the state's having stolen the conflict from two parties is that the criminal justice system cannot hope to meet the demands placed upon it. The system aims to deal with problems that can be solved only through the simultaneous exercise of reason and passion by collectivities. State officials can direct their reasoned judgments only at individuals; they must fail on two counts.

Some rightly respected critics have argued that Christie's proposals are "untenable in theory and unrealistic in modern social conditions," or that his proposed undertaking "would involve not a change in sentencing philosophy, but a completely new set of institutions for responding to what is now termed criminal behaviors."(80) These criticisms may be rather less sweeping than appears to be the case. Certainly, within criminal justice systems as they are currently constituted, there is little room either for handing conflict back to victims or for treating incivil behavior as anything other than criminal. However, if the incivil behavior of boys and young men--the bulk of uncivil behavior--is treated as the concern of institutions other than those of the criminal justice system, Christie's proposals look more practical and less utopian. If the offending behavior of adolescents and young adults is symptomatic of failed social institutions, then it might just as well be addressed as a problem of public health and public education rather than as a problem of criminality. The Family Group Conference model, particularly when used as part of a diversionary cautioning scheme, is based on this philosophy. Andrew von Hirsch's criticism, that the sort of claims made by Christie demand entirely new institutions, is a little too strong.(81) What is being proposed is a change in the way existing state institutions (co-)operate and a change in the way they mobilize social resources such as the cooperation of people affected by incivil behavior and crime. The very nature of state institutions may indeed change over time as cooperative arrangements between the state and civil society are developed. But the only revolution being proposed initially is a revolution in the way we understand offending behavior. Any related institutional change would have to be evolutionary. The revolution in understanding involves grasping the social power of shame and other emotions of self assessment. It involves the acknowledgment of a third option beyond individual retribution and individual rehabilitation. This third option, without infringing individual rights, works as collective moral education.

In order to explain how the Family Group Conference constitutes a ritual of collective moral or civic education, one needs to consider briefly the role of shame in transforming the indignation of all parties present. As has already been argued, the resentment of the victim is entirely understandable and appropriate, as is the more general indignation of the victim's supporters. As has been argued, the offender's self-directed indignation, which we call guilt, is slightly more complex. Guilt is one of several emotions that manifest themselves collectively as shame, and shame, in turn, registers a threat to the offender's social relationships. It has, furthermore, been argued that the concern of traditional criminal justice processes with guilt encourages the offender to focus on the personal consequences of the offense. A concern with guilt does not encourage offenders to focus on the consequences of the offense for the victim or on the consequences for that wider community of people who are close to the victim, the offender, or both. Traditional processes also lack a ceremonial means to resolve the indignation--the righteous anger--of the immediate victim. They lack a means to deal with the anger of the broader community of victims. In the offender, meanwhile, the struggle to maintain self-respect drives remorse and righteous anger below the emotional surface. Guilt is distilled from overt shame. The deeper, bypassed shame remains. It may later emerge as rage.(82)

The act of forgiveness offers a way out of this emotional impasse. In the conference setting, forgiveness is regularly forthcoming. It occurs in a way that is "consistent with self-respect, respect for others as responsible agents, and allegiance to the rules of morality."(83) The participants must first experience an exchange of perspectives. The young person's account of the circumstances leading to the offense is countered with the victim's account of the experience. The offender is faced not with the institutionalized anger and resentment of the law, but with the very real anger and resentment of the victim. This display of anger is followed by an account from the offender's supporters. Their account involves a more complex mix of general indignation and vicarious shame. However, they also reveal some underlying support for the offender; here, the partiality of love is mixing with the impartiality of justice. Support for the offender is often more readily offered by people who are one step further removed from the offender than are the parent(s) or guardian(s). Grandparents, aunts and uncles, or family friends often come to the defense of the young offender without condoning his or her offending behavior. They, of course, are often aware of injustices within the "private sphere" of the family. These injustices are intuitively understood as "mitigating circumstances." (Interestingly, the research program for the Australian Institute of Criminology is revealing that younger siblings--particularly younger brothers--also tend to express their support for their intrinsically good but inappropriately behaved older siblings.)

Symptoms of bypassed shame and rage are frequently displayed by those young offenders who also know how it feels to be victimized. Like the accounts by the offender's supporters, the accounts of the victim's supporters are invariably emotionally complex. Their general indignation at the offense is strengthened by their partisan concern for the victim. However, their indignation is simultaneously tempered by a concern for the offender. The victim's supporters also display a different sort of concern--closer to empathy--for the offender's supporters. Unlike the victim, however, the victim's supporters are not in a position to offer forgiveness. Their presence nevertheless makes easier the task of reparation and reconciliation. Just as the presence of the offender's supporters facilitates the offender's renunciation of all defenses in the face of potential moral censure, so the presence of the victim's supporters facilitates the victim's offer of forgiveness. The victim's supporters tend to place strong emphasis on material reparation for damage. While material reparation is significant, victims themselves tend, in our experience, to be concerned with symbolic reparation. This involves appealing directly to the young person not to re-offend and receiving a response they find convincing. The victim's act of forgiveness is part of this process. It is to be distinguished: from justification of the offense on the grounds of mitigating factors; from mercy towards the offender, which can be shown only by an authority with the qualifications to pass formal legal judgment; from condonation of the offense in the interests of family or community harmony. These distinctions, listed in Murphy and Hampton's study, are made with surprising frequency by the more articulate participants in Family Group Conferences.(84) In sum, victims tend to be more concerned with symbolic reparation than they are with material reparation, and symbolic reparation offers a way to heal the emotional damage caused by the offense.(85) Victims are certainly more interested in these two outcomes than they are in retribution, and the reasons for this seem fairly clear. People may feel vindictive, malicious, and spiteful towards an offender when contemplating the offender's actions from a distance; they are far less likely to feel this way when faced with the offender as a real human being in a collective social setting. In the latter setting, people tend intuitively to understand the self-defeating nature of malicious hatred (which is confusingly labeled, following Nietzsche, as ressentiment).(86) Malice, spite, and vindictiveness all assume human worth to be entirely relative. In this view, people are ranked according to "a non-egalitarian, competitive grading system."(87) It is better to believe in intrinsic human worth. Of course, the theory implicit throughout this argument has assumed intrinsic human worth and is Kantian in this respect. The theory also assumes that fundamental aspects of morality are innate; morality is linked to the emotions that regulate social life. People thus intuitively recognize the intrinsic worth of others unless they have been "socialized out of morality."(88) People do not need to rationalize a Kantian position from selfinterest; faced with a social response that calls for a decision between two views of human worth, they tend to opt for intrinsic rather than relative human worth. The collective approach of the Family Group Conference tends to strengthen this response, just as it encourages the victim to forgive. Here again it is possible to show why rational forgiveness is in the victim's interest. Again, however, people's responses appear to be intuitive.

For the victim, separating the unacceptable act from the person who committed it overcomes the resentment, the righteous anger, caused by the offense. The act of forgiveness helps the victim to avoid the debilitating effect of harboring resentment and anger. These two emotions are no longer required to defend selfrespect once the distinction between offender and offense has been publicly acknowledged. In making that distinction and in offering forgiveness, the victim and the victim's supporters are liberating the offender "from the effects of the victim's moral hatred."(89) The burden of offenders' "disgrace-shame" begins to dissipate with their ceremonial social reintegration. In theory, the conference process does not burden an offender with dangerous bypassed or suppressed shame, an emotion which could later reemerge as rage. It is hoped, however, that if a young person who has experienced this process is faced with another temptation to offend, he or she may be deterred by pangs of conscience. These can be called "discretion-shame."(90)

Much work will still need to be done. The resoration of mutual trust will be a slow process, but the basis for that restoration of trust will now have been laid. The public acknowledgment of support for the offender's intrinsically good self will have marked the ritual social reintegration of the offender. However, those who have participated in the conference now bear some additional responsibility of support for the young person whose behavior warranted convening the conference. That additional responsibility extends to ensuring that basic standards of justice apply within the young person's family. If no other options are available, some professional help, intervention, or oversight may be required. The preferable solution, however, will involve a collective community response to ongoing problems of individual incivility or collective injustice. The Family Group Conference will have set the ground rules for this response. It will have offered a practical demonstration of some basic principles of justice.

A conference is held in the wake of a breach of the social contract. It creates the sort of "initial position" in which, according to theorists of the social contract, people can reach agreements about what actions are mutually beneficial and what actions are mutually harmful.(91) A fundamental principle of justice is learned under these conditions: that collective and individual interest require of people that they avoid subjugating other people. This golden rule of ethics--do unto others only as you would have done unto yourself in similar circumstances--is a requirement of justice and a requirement of reason.(92) Among those present, the young offender will certainly not be the only person to have subjugated another; the victim will not be the only one to have been subjugated. The collective lesson about fundamental principles will apply to all present. The lesson is learned, or reinforced, both intellectually and emotionally. The conference teaches this lesson effectively precisely because it is not an abstract lesson about universal principles. Rather the conference provides "a context of commitment, in which the unique person really matters;" it therefore "generates full concern for the well being of others."(93) That is to say, the conference is a lesson in empathy for all present. It is premised on a belief that the capacity for empathy is a human universal.(94) It also offers a model in answer to Tavuchis's call for a "pedagogy of apology."

Now many of these claims are couched in a language that has been labeled communitarian--and communitarian language is not without its critics. Much of the communitarian debate has developed as a response to the work of John Rawls. Contributors have called for a revision to Rawls's view of the individual. They have called for a revision of views about the relationship between rights and obligations. Finally, they have called for a revision of views about how politics operates at the local level of association. All three of these issues are raised by the juvenile diversionary scheme using Family Group Conferences that is the subject of this discussion. Accordingly, this review of issues raised by the Family Group Conference Model will conclude with a discussion of some recent political theory. The aim here is to determine whether the practical working model of diversion using Family Group Conferences might be subject to some of the theoretical criticisms raised by communitarian critics of liberalism or, conversely, subject to criticisms raised by their liberal, "individualist," or "universalist" counterparts.

Political Theory

It is at this point that Braithwaite's explanatory theory of crime causation and social regulation meets his normative political philosophy as outlined in Not Just Deserts. Braithwaite and his co-author, Philip Pettit, call their normative theory a republican theory of justice. In doing so, they bow to Montesquieu, who recognized the need for a political theory that acknowledges not only the threat of coercive state power but also the threat of crime. Both state coercion and crime pose a threat to dominion, which, for Braithwaite and Pettit, is the republican counterpart to the liberal ideal of freedom. Their criticism of the liberal ideal, a criticism echoing that of Charles Taylor, is that the liberal ideal of freedom is based on the notion of an isolated, asocial individual. Dominion, in contrast, is a freedom derived socially: a person's prospects of liberty should be equal to those of other members of his or her society. The authors' target of dominion leads them to advocate a minimalist criminal justice policy but a redistributive economic policy. It is difficult to see how this program differs in essence from that of a proudly liberal theorist such as Joseph Raz in The Morality of Freedom. Like several other contributors to the debate prompted by Rawls, Braithwaite and Pettit may be too easily critical of liberalism.(95)

Certainly there has been a tendency in some of the literature to exaggerate the differences between Rawls's liberlism and the proposed correctives. Nevertheless, there are differences. They are significant in this context because the Family Group Conference model has been seen as meeting the requirements of the republican program outlined by Braithwaite and Pettit. In being seen as a communitarian response to the problem of crime, the model has also been criticized as a threat to certain liberal legal safeguards of rights. However, such criticisms are pitched at two levels. The first criticism is that the procedures involved in bringing young offenders to Family Group Conferences may infringe their rights or the rights of others. The second criticism, or group of criticisms, is more theoretical. Theoretical criticism concerns the extent to which the Family Group Conference model can be seen as an example of communitarianism. If the model is clearly communitarian, we need to ask whether it can be subject to the same criticisms or counter--criticisms as have been leveled at communitarian theory in general.

Criticism concerning procedural safeguards of legal rights in the Family Group Conference can be answered relatively easily. The critics' major concerns apply to most informal justice schemes. Their concerns include the need to protect against stigmatization from the "informal equivalent" of a criminal record, the need to ensure that the organization administering the diversionary scheme is publicly accountable, and the need to ensure that officials do not coerce admissions of guilt from suspected offenders.(96) These issues will be discussed here only as they relate to the diversionary cautioning scheme operating in New South Wales and known as the Wagga model. The New Zealand model and its complex legislation have been discussed at length elsewhere.(97) The New Zealand model is also less obviously communitarian than its New South Welsh counterpart, given the role accorded by the New Zealand legislation to state officials in the cautioning process.

The Wagga model deals with the first two criticisms of informalism in a simple manner. Young offenders who have been cautioned in a Family Group Conference have a notation made to that effect. The notation is kept with the documents relating to the original offense. That information does not go beyond the police station at which the cautioning took place. The subsequent legal status of the offender is thus no different from that of young offenders who had been subject to a "traditional" police juvenile caution. The second criticism, concerning accountability, has not been the subject of controversy to date. The only officials present at those several hundred conferences run during the scheme's first two years of operation have been the coordinating police officer and, occasionally, the officer who investigated the circumstances of the offense. There have been no complaints to date. Nevertheless, as the scheme is implemented in other towns and cities, there may be a need for state legislature(s) to frame legislation allowing for the presence of independent observers at Family Group Conferences. Legislators would have to consider very carefully, however, whether the presence of other (semi-)officials in a Family Group Conference would not function as a symbol of mistrust while also duplicating legal safeguards that are already provided vicariously by a police ombudsman. Those pressing for such legislation to be passed will have failed to see that the significant discretion in these matters does not reside with the police officer coodinating the Family Group Conference. The more significant discretion rests with that group of police sergeants who meet weekly in order to decide whether particular young offenders should be given the option of attending a Family Group Conference as an alternative to children's court.(98) The potential criticism of such an arrangement is that the availability of an alternative will encourage young offenders to seek a "soft option" by confessing guilt.

Such criticisms are untenable for a combination of reasons. Firstly, the guilt or innocence of the offender is not at issue in most juvenile cases; guilt is readily confessed. Secondly, the option of resolution through a Family Group Conference cannot be made to the young suspect by an investigating officer; a decision to deal with the matter in a Family Group Conference can be made only by the council of sergeants after the matter has been investigated. Thirdly, most young offenders do not seem to regard the Family Group Conference as a soft option. They are aware of the difficulty of facing a group of people who have been affected by their offending behavior. The very act of agreeing to attend the Conference begins the ritual of apology and the process of reparation. Most young offenders realize this and, faced with a personal challenge, rise to meet that challenge. The presence of their supporters helps them to do so. If they do not wish to take the option of the Family Group Conference, and in those few cases where the guilt of the offender is disputed, the Court Process remains available. The offense can be dealt with in court as a legal issue. In these circumstances, however, victim, offender, and the immediate community of "indirect victims" will miss the opportunity to address the offense as an ethical or moral issue. For all of these reasons, it seems inappropriate to talk of young offenders being unjustly coerced to attend conferences.

Nevertheless, a form of social coercion will be applied during and after the conference. If there is an agreement to provide material reparation for damage caused by the offense, there will be pressure to meet the reparation agreement reached during the conference. A young offender who has been through a Family Group Conference will have reacquired the status of a moral citizen. If he or she fails to meet the reparation agreement through replacement of goods, direct payment, or payment in kind, that young person's status as a moral citizen will be threatened. But it would be appropriate to call this threat "coercion" only if the young person had been subject to disproportionate demands for reparation. It is more appropriate to describe the pressure to meet the reparation agreement as the pressure of community control or positive social control. A young person who has agreed to arrangements for reparation is faced with two sources of pressure to meet that agreement: the first is social disapproval; the second is the pressure of pangs of conscience or discretion shame. In other words, young offenders are subject to exactly the same pressures as the rest of the moral community. These pressures may be more immediately apparent as the young persons have been ritually reminded of the value of community membership. In reality, they are no more subject to coercion than anybody else.

The concern that the theory is too optimistic can be countered by empirical evidence from the early stages of research into the Wagga model. The level of material reparation has been around 95 percent. The percentage of young people who have reoffended after a first Family Group Conference is around 5 percent.

In sum, the procedural criticisms of the model of diversion using Family Group Conferences are important to consider, but they do not stick. Of broader interest are the potential theoretical objections to communitarian theory; these objections may also apply to the Family Group Conference model on the grounds that the model represents an example of communitarian practice. To address these potential objections, and at the risk of oversimplification, one needs to summarize the key issues in the debate between communitarian and liberal theorists.

A recent review of liberal-communitarian debate identifies five areas of general dispute between those writers who have been collectively labeled "communitarian" and those who seek to defend a philosophy they call liberalism.(99) The target of communitarian criticism has generally been the work of John Rawls. His liberal theory of justice has been taken to task for employing an inadequate theory of the person, for seeing individuals as asocial, for wrongly claiming to have universal application, for showing signs of moral subjectivism, and for resisting any attempt by the state to define and foster that which is good in society.(100) (In virtually every case, Rawls's position has been somewhat distorted or exaggerated. The resulting discussions have nevertheless proved highly valuable.)

The first two issues here have, in effect, been dealt with already. The psychosocial theory informing the use of the Family Group Conference as an educational mechanism is very close to that described in the work of communitarian writers such as Michael Sandel and Charles Taylor. They place a stronger emphasis than does much liberal theory on the social nature of individuals. They emphasize the link between a person's emotional life and the social system of language and values that make it possible to interpret that life. Taylor's work, in particular, sounds very much like republican theory as understood by Braithwaite and Pettit. Taylor is keen to emphasize the point that a commitment to safeguarding individual rights and values requires an equally strong commitment to the safeguarding of communal structures that make it possible to enjoy those individual rights.(101) In short, the general communitarian concern with the liberal view of individuals is not that the liberal view is wrong but that it is incomplete. The subject of political theory should not simply be the rights of individuals but, rather, the rights and duties of social individuals. This concern is clearly central to the Family Group Conference model for dealing with offenses committed by young people. Thus the model, in its view of the person and of social relations, can clearly be seen as communitarian. But few could find this modified view of liberal political philosophy exceptionable. The other three areas of concern in the liberal-communitarian debate, however, deserve further consideration. These are a concern about the extent to which liberal ideals and programs can have universal validity, a concern about the liberal acceptance of a certain moral subjectivism, and, finally, a concern about the extent to which governments should seek to define and encourage that which is good. The relevance of this general debate here is that these general issues have been raised in the form of specific objections to the Family Group Conference model. Serious answers to the specific objections need to take account of the general debate. In their specific form, the objections are as follows: First, the Family Group Conference model can have only limited applicability. Second, the model undermines the notion of just deserts and legal uniformity by leaving to a group of amateurs a decision about the exact nature of the response to an offense. Third, the model oversteps the mark not only by seeking to show young people what behaviors they must avoid in order to meet the requirements of justice but also by indicating what sort of social relationships people might foster in order better to live a good life.(102)

Now the first of these three objections to the Family Group Conference takes the form of a liberal position subjected to a fairly strong communitarian criticism. Those who have suggested that the model cannot have universal applicability have argued, for instance, that the role of shame varies from one ethnic group to another. Alternatively, critics have suggested that some communities simply do not have the resources to deal with the problems of juvenile offending. This line of argument is often premised on the claim that, where families are disintegrating or appear to be the major cause of a young person's incivility, the family is no answer to the problem.

The concern that shame will have no power among certain ethnic groups or in certain geographical areas has yet to be fully tested. However, the theory of reintegrative shaming would suggest that the emotion of shame ought to have universal applicability as a means of widening the net of positive social control. A more obviously positive way in which to answer concerns about the model's limited applicability is to point to strong evidence that the capacity for empathy is a human universal.(103) And it is empathy, above all, that is the shared currency of the Family Group Conference. The related concern that communities lack the resources to deal with juvenile offending and to offer positive social control can also be rebutted--up to a point. If dysfunctional families and disintegrating communities are indeed a part of the problem of juvenile offending--and this assertion would be disputed by few people--then the Family Group Conference offers ways to deal with the source of this problem.(104) Those who are present at a conference have demonstrated a willingness to deal with crime and incivility at the local level. In the course of the conference, minimum standards of justice and civility are effectively agreed upon by all present. These standards of civility represent "a kind of minimal and universal moral code" that applies to all citizens of a just community and in all spheres of life.(105) These values concerning minimum standards of behavior must apply within the private sphere of the family just as they do in the public sphere. Those who subject other family members to violence and related forms of abuse, who undermine the dominion of others, may feel shame before the audience of the Family Group Conference. They may feel this shame even though their offenses are not the direct subject of the Conference. Faced with their next temptation to violence, they may feel stronger pangs of conscience, stronger discretion shame, as a result of the Conference experience. This increased internal control is likely to be matched, or exceeded, by the increased external control provided by friends or relatives present at the Conference. Through their participatio, friends and relatives have indicated their concern that minimum standards of justice apply within the nuclear family.

The concern that certain communities may lack the resources to deal with the causes of juvenile offending is thus understandable but misplaced. Conferences may actually represent one way of addressing the problems of dysfunctional families and disintegrating communities. Minimum standards of social behavior are agreed upon. Social bonds are strengthened. Responsibility for one's own behavior and the behavior of others is emphasized.

A second major objection to the Family Group Conference model can, in contrast to the first objection, be read as a liberal critique of a communitarian position. The concern here is that the rule of law is undermined by "informal" solutions to crime. The rule of law in a liberal system allows for moral subjectivity but legal uniformity. On one reading, the Family Group Conference reverses this formula. It provides a mechanism for responding to crime outside the legal system, but it encourages participants to agree to minimal moral or ethical standards for social life. However, this reversal of the standard formula should present a problem only if one subscribes to a strong retributivist position. Otherwise, dealing with the problem of juvenile crime in this way seems perfectly logical. The safety net of legal rules remains in place. Participants in a Family Group Conference retain the alternative option of dealing with the issues before a court. The role of police as coordinators of the process not only lends a certain gravity to the ritual of apology and forgiveness; it also helps to ensure that only legally permissible interaction occurs between conference participants. However, with the safety net of the liberal legal system having been placed around the proceedings, conference participants can seek to resolve their differences--and deal with their charged emotions--not at the level of state law but at the level of civil morality and ethics. There has thus been a shift in focus at two levels. The shift from law to ethics is paralleled by a shift in the way offending by young people is viewed. As has been argued above, the diversionary model using Family Group Conferences sees the problem of juvenile crime and incivility less as a problem of criminal justice and more as an issue of social justice, public education, and public health. Yong offenders generally lack empathy for their victims. Conversely, many young offenders respond well to a public display of empathy for them. The process that enables this sharing of perspectives can be considered as a powerful exercise in public education.

These shifts in focus may prompt a third objection to the Family Group Conference model. The concern here is that the state should not seek to determine how people should run their lives. This "anti-perfectionist" position is that the state should seek that which is just without trying to define and foster that which is good. The general argument concerning this distinction between the just and the good has been complex and convoluted.(106) It is beyond the scope of this discussion. Nevertheless, it is clear that any criticism of the Family Group Conference model for imposing values on participants would be misplaced. Within the conference, State officials are offering a set of procedures by which those citizens most affected by particular acts of incivility can offer a collective response. Collectively, they can defend their self-respect while agreeing to minimum standards of behavior. Indeed, as has been argued, the procedure of the Family Group Conference offers a dramatized version of the social contract. Consequently, the key to the conference's "justificatory force...lies not in what [participants] do there but rather in what they apprehend there."(107) State officials are not imposing their interpretation of what is good on unwilling participants. Rather, they are umpiring a process that encourages people to participate actively in the ordering of their own lives.


The claims made here for a simple process known as the Family Group Conference may seem preposterous. After all, the process involves nothing more than a group of people sitting in a room for an hour or so with a police officer. They reach various agreements, apologize, forgive, and generally shed tears. But does it work? At this stage a number of claims can be made, bearing in mind that the model has been trialed in the form described for only two years or less and in only a small number of towns or small cities in southern New South Wales, Australia. Some of these claims will, of course, relate to the original New Zealand model. The following seems clear:

The model takes very seriously the resentment of the victims of crime; it offers a forum for victims to overcome this resentment by achieving symbolic (and material) reparation. The model acknowledges that any crime affects a number of "indirect victims" who will feel a general indignation at a breach of social norms; it offers a forum for the reaffirmation of social norms. The model is premised on the knowledge that most young offenders lack sufficient empathy for their victims. The conference is designed as a lesson in empathy. It is designed to strengthen the internal control of conscience and the external control of social bonds. The model acknowledges, however, that many young offenders are themselves victims of their social circumstances; frequently, they are victims of their own family members. A single Family Group Conference obviously cannot resolve problems of economic deprivation. It can, however, help to identify problems of dysfunctional families. Resources to deal with these problems may be available within the family's immediate community. Alternatively, state assistance may be necessary. Whatever arrangements are reached, the initial response to the problem will have been more comprehensive than is possible under either the punitive or the therapeutic model of juvenile justice.

In addition to the more satisfactory outcome for victims, offenders, and their relatives and close friends, the Family Group Conference Model offers a better outcome for police. They are currently dissatisfied with systems that fail to deal with the emotional state of victims, that fail to moralize effectively against offenses committed by young people, and that hold police partly responsible for symptoms of social disintegration. The model offers an alternative way to determine the seriousness of an offense, by emphasizing the impact of an offense on victims and by focussing on predatory crime. The model also encourages the police to be neutral umpires of constructive conflict, rather than playing an active role in destructive conflicts. It shifts the focus back towards the earlier role of uniformed police--that of coordinators of social justice. This is community policing in a deeper sense. It is not simply the better policing of a community. Rather, the model offers a way to encourage communities to police or to order themselves.

Having accepted these arguments and having accepted that the diversionary model using the Family Group Conference does offer empirical evidence to support the theory of reintegrative shaming, one might still question the broader significance of the Family Group Conference Model. Here a predictin may be apposite. If the diversionary model of juvenile justice using Family Group Conferences is adopted to any considerable degree outside Australasia, and if it is seen to be successfu, it may indeed have some significant broader ramifications. The model, having been adopted and adapted from its New Zealand counterpart, was trialed in a large non-metropolitan Australian town. It currently applies only to offenses committed by people between the ages of ten and eighteen. Serious indictable offenses are not dealt with in this manner, nor should they be in the foreseeable future. Nevertheless, the range of offenses considered appropriate to be dealt with in Family Group Conferences has already been expanded --with general community acceptance. The decentralized, community-based, and gradualist nature of the model suggests that this tendency to expand the scheme may continue. Thus, it will not only be adopted in other similar-sized towns, where the term community is something more than rhetoric; it may also be gradually introduced to those areas suffering greater incivility--areas such as the suburbs and ghettos of the big cities.(108) The age range of people eligible to appear as offenders in Family Group Conferences might be extended. The nature of offenses to be dealt with might also be broadened. The limits to such reforms will be subject to rigorous public debate--and this is as it should be. But the debate will encourage local participation. Many of those participating will already have experienced a system that offers something other than the relentless policy pendulum swing between rehabilitation and punishment.






(5)The suggestion that the Wagga model using the Family Group Conference is victim-centered was made by John Braithwaite in order to contrast the model with its New Zealand counterpart. The important point underlying the suggestion is that a shift of focus away from the young person who committed the original offense has distinct advantages for that young person. See Braithwaite, Juvenile Offending: New Theory and Practice, in PROCEEDINGS OF THE NATIONAL CONFERENCE ON JUVENILE JUSTICE. (S. Gerrull & L. Atkinson eds. 1993) (forthcoming).

(6)For an analysis of the political circumstances that had made possible the implementation of this model in a single police patrol without sabotage from without or above, see Moore, Criminal Justice and Conservative Government in New South Wales (1988-1992): The Significance of Police Reform, 15 POLICE STUDIES 41-54 (1992).

(7)Moore, Police Responses to Community Policing, in THE POLICE AND THE COMMUNITY (S. McKillop & J. Vernon eds. 1991).

(8)Braithwaite, supra note 5.


(10)Id. at 75-76.


(12)See G. M. MAXWELL & A. MAXWELL, supra note 4.

(13)Braithwaite, Reducing the Crime Problem: A not so dismal criminology, 25 AUST & NZJ. CRIMINOLOGY 1-10 (1992).




(17)J. BRAITHWAITE & P. PETTIT. NOT JUST DESERTS: A REPUBLICAN THEORY OF CRIMINAL JUSTICE (1990); Ten, Dominion as the Target of Criminal Justice, 10 CRIM. JUST. ETHICS, Summer/Fall 1991, at 40-46.

(18)A. HELLER, THE POWER OF SHAME 6 (1985); T. J. SCHEFF & S. M. RETZINGER, supra note 11, at 27, S. M. RETZINGER, supra note 11, at 38.

(19)BRAITHWAITE, supra note 9, at 59.

(20)Martinson, What Works?--Questions and Answers about Prison Reform, 35 THE PUBLIC INTEREST 22-54 (1974).


(22)J. BRAITHWAITE, supra note 9, at 5.

(23)Stenson, Making Sense of Crime Control., in THE POLITICS OF CRIME CONTROL (K. Stenson & D. Cowell, eds. 1991) and the debate between Elliott Currie and James Q. Wilson republished as The Politics of Crime: The American Experience, id.


(25)Stenson, supra note 23, at 27.

(26)Francis Schrag provides a succinct summary of this position in 10 CRIM. JUST. ETHICS Winter/Spring 1991, at 3-7.

(27)E.g., K. Heal, Changing Perspectives on Crime Prevention: The role of information and structure, in CRIME, POLICING AND PLACE (J. Evans, N. R. Fyfe & D. T. Herbert eds. 1992).

(28)J. BRAITHWAITE, supra note 9, at 142.

(29)LIBERALISM AND THE MORAL LIFE (N. E. Rosenbaum ed. 1989) offers a range of impressive contributions to this debate.

(30)L. STONE, THE PAST AND THE PRESENT REVISITED (1987); Stenson, supra note 23; D. GARLAND, supra note 21, chs. 6 & 7.

(31)S. M. RETZINGER, supra note 11, at 200.

(32)J. BRAITHWAITE, supra note 9, at vii. See also H. LYND, ON SHAME AND THE SEARCH FOR IDENTITY (1958).

(33)Garfinkel, Conditions of Successful Degradation Ceremonies, 61 AM. J. SOC. 420-24 (1956).

(34)This critique is probably most closely associated with symbolic interactionism. See H. BLUMER, SYMBOLIC INTERACTIONISM (1969).

(35)Philip Selznick provides an extensive overview of the issues, supra note 3, chs. 1 & 3.


(37)Cohen, Discourse Ethics and Civil Society, in UNIVERSALISM VERSUS COMMUNITARIANISM 100(D. Rasmussen ed. 1990).


(39)T. J. SCHEFF & S. M. RETZINGER, supra note 11, at 124.

(40)J. G. MURPHY & J. HAMPTON, supra note 11, at 4.


(42)In a related argument Bernard Williams has been strongly critical of the abstract nature of morality in our major philosophical traditions. See MORAL LUCK (1981) and ETHICS AND THE LIMITS OF PHILOSOPHY (1985).

(43)This is Philip Selznick's summary of G. H. Mead's theory of moral development. See P. SELZNICK, supra note 3, at 163.


(45)S. M. RETZINGER, supra note 11, at 28.

(46)S. M. OKN, JUSTICE, GENDER AND THE FAMILY passim (1989).

(47)M. S. PRITCHARD, supra note 44, ch. 6.


(49)Critics have probably been unfair to Rawls on this point; his theory of moral development does emphasize both cognitive and affective changes. On the broader definition of morality, see P. SELZNICK, supra note 3, ch. 6 and A. HELLER, supra note 18, at 215.

(50)M. S. PRITCHARD, supra note 44, ch. 6.

(51)A. HELLER, supra note 18, at 215; S. M.OKIN, supra note 46, ch. 6.

(52)S. M. OKIN, supra note 46, at 21.

(53)Id. at 110.

(54)This criticism has arisen in the "liberal-communitarian debate." See S. MULHALL AND A. SWIFT, LIBERALS AND COMMUNITARIANS ch. 1(1992).

(55)Wren, The Possibility of Convergence between Moral Psychology and Metaethics, in THE MORAL DOMAIN (T. Wren ed. 1990).

(56)Morris, Murphy on Forgiveness 7 CRIM. JUST. ETHIC S, Summer/Fall 1988, 15-19.


(58)Id. at 41.

(59)Id. ch. 4.

(60)Id. at 48-53.

(61)H. B. LEWIS, SHAME AND GUILT IN NEUROSIS (1971); PSYCHIC WARIN MEN AND WOMEN (1976); THE ROLE OF SHAME IN SYMPTOM FORMATION (ed. 1987). See D. L. NATHANSON, supra note 11. The significance of Tomkins's and Nathanson's affect theory for the Family Group Model is discussed at length in Moore, Evaluating Family Group Conferences, in CRIMINAL JUSTICE PLANNING AND COORDINATION (S. McKillop ed. 1993, forthcoming).

(62)See also G. TAYLOR, supra note 38 passim, and M. S. PRITCHARD, supra note 44 passim.

(63)Duff, Review Essay: Justice, Mercy, and Forgiveness, 9 CRIM. JUST. ETHICS, Summer/Fall 1990, at 51-63.

(64)Murphy, Mercy and Legal Justice, in J. G. MURPHY & J. HAMPTON, supra note 11.

(65)Strawson, Freedom and Resentment, in PHILOSOPHY OF THOUGHT AND ACTION (P. F. Strawson ed. 1968).

(66)Tugendhat, The Necessity for Cooperation between Philosophical and Empirical Research on the Clarification of the Meaning of the Moral "Ought," in T. Wren ed., supra note 55, at 12.

(67)J. G. MURPHY & J. HAMPTON, supra note 11, at 16.

(68)G. TAYLOR, supra note 38 ch. 4 passim. See also J. FEINBERG, DOING AND DESERVING ch. 9 (1970).

(69)G. TAYLOR, supra note 38 ch. 5.

(70)Id. at 135.

(71)Id. at 101-04. See also M. SCHELER, RESSENTIMENT (1961).

(72)S. M. RETZINGER, supra note 11, at 41.

(73)In addition to N. ELIAS, supra note 41, T. J. SCHEFF & S. M. RETZINGER, supra note 11, S. M. RETZINGER, supra note 11, and J. BRAITHWAITE, supra note 9. See J. KATZ, THE SEDUCTIONS OF CRIME (1988).


(75)J. F. STEVEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND, cited in Murphy, Forgiveness and Resentment, in J. G. MURPHY & J. HAMPTON, supra note 11 ch. 1.

(76)This is not to suggest that broader issues of state authority were not the major impetus behind these developments. As Harold Laski wrote earlier this century, the modern nation state "demands ... the whole of the man's allegiance lest, in seeking less, it should obtain nothing." AUTHORITY IN THE MODERN STATE 23 (1919).

(77)A. HELLER, supra note 18, at 215.


(79)Christie, Conflicts as Property, in 17 BRITISH J. OF CRIMINOLOGY, 1-15 (1977); N. CHRISTIE, LIMITS TO PAIN (1982).

(80)Ashworth, Punishment and Compensation: Victims, Offenders and the State. 6 OXFORD J. LEGAL STUD. 120-21 (1986); von Hirsch and Maher, Should Penal Rehabili-tationism be Revived? 11 CRIM. JUST. ETHICS 25-30, Winter/Spring, 1992, at 28.

(81)von Hirsch, Review of Christie, 28 J. OF CRIME & DELINQ. 315 (1982).

(82)On the distinction between overt and bypassed shame, see H.B. LEWIS, supra note 61.

(83)J.G. MURPHY & J. HAMPTON supra note 11, at 19.

(84)Id., ch. 2.

(85)On evidence from British Victim/Offender Reconciliation Program (VORPS), see M. WRIGHT, JUSTICE FOR VICTIMS AND OFFENDERS: A RESTORATIVE APPROACH TO CRIME 113 (1991).

(86)J.G. MURPHY & J. HAMPTON, supra note 11, ch. 2. See also M. SCHELER, supra note 71.

(87)J.G. MURPHY & J. HAMPTON, supra note 11, at 72.

(88)For a study of this "socialization out of morality," using a social interactionist perspective, see L. H. ATHENS, THE CREATION OF DANGEROUS VIOLENT CRIMINALS (1989).

(89)J.G. MURPHY & J. HAMPTON, supra note 11, at 20-22 and 84.

(90)Carl Schneider makes this distinction between discretionshame and disgrace-shame in C. D. SCHNEIDER, SHAME, EXPOSURE AND PRIVACY (1977). Again, this distinction is perhaps best explained in terms of Tomkinss' and Nathanson's Affect Theory, supra note 11.



(93)P. SELZNICK, supra note 3, at 200.


(95)See Ten's critique of NOT JUST DESERTS, supra note 17.

(96)J. SEYMOUR, DEALING WITH YOUNG OFFENDERS ch. 6 (1988); Moore, Facing the Consequences: Conferences and Juvenile Justice, in S. Gerrull & L. Atkinson eds., supra note 5.

(97)G.M. MAXWELL & A. MORRIS, supra note 4, passim.

(98)In Australia's state police services, Sergeants and Senior Sergeants are at the third and fourth ranks of a four-rank non-commissioned officer class.

(99)S. MULHALL & A. SWIFT, supra note 54.

(100)Id., ch. 1.

(101)See esp. Taylor, Cross-Purposes: The Liberal - Communitarian Debate, in N.E. Rosenbaum ed., supra note 29.

(102)Moore, supra note 96.

(103)D. BROWN, HUMAN UNIVERSALS (1990); NATHANSON, supra note 11.

(104)Robert J. Sampson borrows Coleman's concept of social capital to find new insights in social disorganization theory. These insights square with empirical evidence from Family Group Conferences. See Sampson, Family Management and Child Development: Insights from Social Disorganization Theory, in FACTS, FRAMEWORKS, AND FORECASTS (J. McCord ed. 1992).


(106)S. MULHALL & A. SWIFT provide an excellent summary, supra note 54, ch. 5 & 6.


(108)Of the now voluminous literature on community policing, J. SKOLNICK AND D. BAYLEY, THE NEW BLUE LINE (1986) is probably the most influential study of programs operating in such areas. The model may also have a place within the public health approach to violence advocated by D. PROTHROW-STITH, DEADLY CONSEQUENCES (1991).
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Author:Moore, David B.
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Date:Jan 1, 1993
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