On July 22, 2011, a car bomb detonated in central Oslo, killing eight people and injuring an additional 209. That same day, the island Utøya was hosting a youth summer camp for the Norwegian Labor Party. A few hours after the bombing, a man posing as a police officer opened fire on the camp’s participants, killing 69 innocents. Anders Behring Breivik was quickly identified as the perpetrator behind both attacks, and this summer a Norwegian court deemed Breivik mentally sane, guilty of terrorism, and sentenced him to 21 years’ imprisonment. The court left open the possibility of indefinitely extending the sentence as long as Breivik is considered hazardous to society.
The New York Times reported that many victims and their families were content with the verdict. Yet, Americans would have reacted quite differently had the crimes been committed in the United States. While the Norwegian system prioritizes restorative justice, focusing on rehabilitating the victims, society, and perhaps most importantly the perpetrator, the American system emphasizes retributive justice, in which punishment is central. These competing visions warrant a closer examination of their respective philosophical assumptions and their pragmatic societal costs.
Philosophical Difficulties
Most would accept that a legal apparatus is necessary in modern society. The fact however that a legal apparatus is not conceptually necessary for society creates tension between what is empirically needed and what theoretical account of justice can be rationalized. To exemplify this conflict, assume that human beings possess fundamental rights given either by convention or nature, and that it is the paramount aim of proper governments to safeguard these rights. Systemic failure in doing so violates citizens’ trust. If philosophers however fail to provide an adequate justification for awarding governments legitimate authority, can the government be moral when enforcing these rights? One must consider these factors when approaching the legal proceedings against Breivik, because reconciling ethics with the needs of safeguarding society is a challenging balancing act.
The Atlantic writer Max Fisher’s inference that the, “Norwegian-style restorative justice subverts those human desires for justice and fairness… the American system’s heavy emphasis on punishment has a history of leading it to horrific excess and abuse – but at least it’s meant to be just,” establishes a false dichotomy. Restorative justice, contrary to its retributive counterpart, does not inherently require imprisonment. Rehabilitation may be better served by avoiding incarceration completely and instead engaging in education. The two approaches are not mutually exclusive; a restorative system can incorporate conventional imprisonment, and a retributive system can rehabilitate the offender and accommodate the victims’ healing processes. Moreover, sanctions can be imposed with intentions beyond simple vengeance; it crucially can rehabilitate the offender, victims, and society at large.
The Predicament of Punishment
The introduction to philosopher Richard Burgh’s paper ‘Do the Guilty Deserve Punishment?’ underlines the moral difficulties of punishment: “[punishment] involves the deliberate and intentional infliction of suffering. It is in virtue of this that the institution requires justification in a way that many other political institutions do not.”
One common justification for the rigorous imposition of legal sanctions is to satisfy the victim’s or society’s desire for vengeance. The state, by acting instrumentally in this pursuit, compensates victims for their grievances by depriving the transgressor of certain liberties. The desire for vengeance, a basic human emotion, parallels the retributive conception of justice. Yet, society must reason with the highly subjective nature of such sentiments. Justice clearly does not entail capital punishment for shoplifting, even when the shopkeepers demand it. Proponents conflating vengeance and justice must provide a satisfactory account of what punishments are necessary and appropriate for various crimes, and why the desire for vengeance, contrary to other emotions, requires state enforcement.
The Importance of Societal Cooperation
Early natural law theorists including Grotius, Pufendorf and Hobbes have suggested that upholding the law helps facilitate social cooperation. Likewise, others have suggested that justice should be seen through lens of utility and consequence.
An essential feature of this view is the relationship between punishment and deterrence. A legal system that cannot impose sanctions is one where transgressors can evade consequences, which will not foster social cooperation. It is critical that potential lawbreakers believe that laws are effectively enforced. Consider a scenario in which the Norwegian police, after months of dedicated investigative work, failed to apprehend the culprit, and faith in the justice system subsequently declined. However, if the legal system eventually convicted any suspect, then faith would be restored. Under the scope of utility and societal cooperation, the suspect need not be guilty. One could justify the punishment as deterrence against future crimes, and as long as the population is kept oblivious to the punishment of innocents, optimal social cooperation has been met. Since arbitrary arrests and the imposition of punishments on innocents are unjust, a purely consequential account of justice is inadequate. This conception provides normative grounds for privileging restorative over retributive justice; however, there is one positive reason to consider.
Moving Forward
Admittedly, demographic, social and cultural factors will influence the practical considerations behind favoring one system. For instance, restorative justice may be suitable for a small, wealthy, homogenous society like Norway. Restorative justice, however, has a unique philosophical feature that makes it morally preferential. As previously noted, these two frameworks are not mutually exclusive. Yet the systems differ in one crucial way: the restorative system intends for the well-being of all parties involved. Such intention is simply a contingent component of the retributive system, which does not have to consider any person’s well-being, especially that of the perpetrator.
In philosophy and law alike, intention and its relation to permissibility and action are fundamental considerations. Should consequences including incarceration and recidivism rates be equivalent, the restorative system seems preferable. Unlike retributive justice, it necessarily intends rehabilitation and improvement. Admittedly, it seems questionable when pursuing justice to take certain things as inherently good; here however, I refer to moral propositions that are agreeable to most people.
With this conception of good, the restorative approach is preferable because it attempts to target the roots of transgressions. For instance, systemic features may exist that render certain societal groups at disadvantages. With marginal outlooks for achievement, an individual may look outside legal bounds for opportunities. A system that attempts to rehabilitate and reintegrate a criminal recognizes and assumes responsibility for the limitations of existing societal frameworks, rather than punishing an individual for the almost deterministic forces that a flawed system can exert.
Overall, from a philosophical perspective, restorative justice seems preferable, and empirical data from Norway shows that the restorative model has lower rates of recidivism and judicial costs. The American demand for punishment could reflect a failure to comprehend the moral and empirical considerations that lend restorative justice its credibility.
Though the monstrosity of Breivik’s case represents a unique challenge, the Norwegian restorative system, like its retributive counterpart, can impose appropriate and just sanctions against Breivik and other criminals. The court’s indefinite sentence extension demonstrates a fundamentally punitive feature, and it seems unlikely that the remorseless Breivik will ever rejoin society. Yet, through its treatment of Anders Breivik, the restorative justice system retains a distinctively superior moral character.
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