When we talk about "transformative justice," I believe it's inevitable
to ask a preliminary question: what does "doing justice" mean? ---- Ifwe were to interview random people on the street, I believe the answers
would largely revolve around the concept of "punishing the guilty." We
would therefore have a dual focus: on the perpetrator as the primary
object of the discussion and on punishment as the primary purpose. All
of this interpreted through the lens of guilt. A guilt that, moreover,
does not actually end with the punishment, but crystallizes in the
identity of the "criminal," the "delinquent," the "convicted." This last
expression seems particularly interesting to me, as it identifies,
through a mere objective fact, the existence of a pre-judgement: an
immutable and irredeemable condition, despite the re-educational
function of punishment.
Obviously, the primary instrument of punishment is prison, although I
have no doubt that the death penalty would soon appear in our
hypothetical interviews.
This is the constricted horizon within which most public discourse
surrounding justice unfolds, even when it comes to gender-based and
sexual violence.
This is also the horizon within which much of contemporary feminism
moves, what various scholars and activists have called "punitive
feminism" or "carceral feminism."
"Transformative justice," on the other hand, is "a type of justice that
gets to the root of the problem and generates solutions and healing
there, so that the very conditions that create injustice are
transformed" (Adrienne Maree Brown, Transformative Justice, Meltemi
2024). It therefore seeks to present itself as an alternative to the
justice of punishment and deterrence.
Furthermore, in this vision-and in its embryonic attempts to implement
it-a central role is attributed to the person who has suffered the harm.
And here we already have a major difference compared to punitive
justice. On the one hand-as obvious as it is, it is worth
emphasizing-the automatic assumption that "crime x corresponds to
punishment y" (even with all the aggravating, mitigating, or
contingency-based distinctions) is undermined in an attempt to identify
specific solutions for each individual situation; on the other, the
assessments and decisions of those who have directly suffered the harm
become crucial.
While this seems an interesting and undoubtedly positive element to me,
I cannot deny that it also raises several issues: is it appropriate to
burden the victim with so much responsibility? Is it reasonable to
expect the injured party to be capable of being "reasonable" and
proactive? Could I, a rape victim-and this is not a rhetorical
question-be the person best placed to try to "generate solutions and
healing"? Let's be clear: solutions and healing in transformative
justice are seen as responsibilities and goals of the community as a
whole. Nevertheless, I believe the above questions cannot be avoided
when the centrality of the person who suffered harm is postulated, if
only by removing the connection with the desire for revenge.
Revenge and reparation are other important concepts linked to that of
"justice." In my opinion, the former is problematic, the latter
fallacious. The debate on the legitimacy of revenge is too broad and
complex to be summarized in a few lines. I will limit myself to pointing
out that, in my opinion, it is difficult to reconcile with a
transformative posture.
Restorative justice, by emphasizing reparation, can have transformative
elements of reality, despite the often reductive and hypocritical nature
of its treatment in courts today. However, I see a major limitation and
an unexpressed issue here. The obvious limitation is that it's rare for
a wrong to be repaired or for the harm suffered to be truly compensated,
unless we adhere to a monetization logic à la US legal drama. If my car
is stolen, I can get it back, but if my daughter is killed, it's clear
that no real compensation is possible. Of course, there's the aspect of
recognition, which I don't intend to underestimate: both the
acknowledgment of the harm done by the perpetrator and the social
acknowledgment of the harm suffered by the injured party. But it's not
enough. "What's done is done," and here we return to the question with
which we began this text: what is the purpose of "justice"? In my
opinion, the focus shouldn't be primarily on repairing what happened-not
because it's wrong, simply because it's often impossible-but on
preventing what happened from happening again, whether against the same
person or others.
This is where the idea of transformative justice comes into play, with
its forward-looking implications. However, I don't want to give the
highly reductive impression that it's simply a matter of ensuring that
"the person never does it again" (although-let's face it-that would
already be a great achievement).
At its core, the assumption is that punishing the individual relieves
the community of responsibility; instead, it's necessary to create
pathways in which the harm is "systematized," attempting to bring about
a "healing" for the surviving victim, the abuser, and the community as a
whole; the "healing" should be general, with a view to radical change.
Society is shaped by a dichotomous vision in which the definition of
good and evil is foundational, necessary, and exploitable: it excludes
the complexity of the factors from the picture, without re-elaborating
and attempting to overcome the structural and transversal conditions
that underlie the harm, both caused and suffered.
Punitive justice, by identifying good and bad, by positing an abstract
and ideal outside and inside, always difficult to clearly establish in
reality, actually entails a structural absolution for the social,
economic, and political system.
Transformative justice is the polar opposite of this vision: it is
precisely the structural and transversal conditions that are the first
to be criticized.
These are lofty goals, which obviously-let's not deny it-in practice
often clash with our limitations, as individuals and as movements.
In the aforementioned excellent essay by Maree Brown, many of these
limitations are explored and discussed: I simply refer you to its reading.
There is another issue, however, that seems to me to remain in the
background, when it deserves in-depth analysis. If the goal is the
healing of the community, it is necessary to ask the question: who is
the community that must heal?
In its attempts to implement it, to date the reference is predominantly
to political communities/collectives, especially feminists, queers, and
trans people. We are therefore talking about communities that are
essentially small, and above all "chosen" communities, therefore
relatively homogeneous, although far from free of differences and
disparities of power within them, as Brown rightly reminds us in the
aforementioned text, as do Palomba (La trama alternativa, Minimum Fax
2023), Argenide (review in issue 135 of the magazine Germinal), and
everyone else who has written on the subject. And here, the difficulties
are not lacking. However, there is a basic assumption: the community,
when this process is triggered, is recognized by the actors involved as
a valid point of reference. If this recognition is lacking, the very
conditions for the journey to begin are undermined.
But "outside"? In a dense, diverse, and complex social fabric, what does
community mean? Who is part of it, what do the people who live there
have in common? Its moral principles? And so, who defines its sense of
justice and therefore the ethical horizon that identifies it? To
function, does the transformative mechanism therefore require moral
guidelines that everyone must identify with in order to remain part of
the community?
How to define and guarantee these guidelines without them becoming a
principle of overwhelming power over individual subjectivities-a
prospect far from desirable from an anarchist perspective-is a complex
problem and, in the writer's opinion, truly difficult to solve.
Asia
https://umanitanova.org/infrangere-la-giustizia-dei-padri-giustizia-trasformativa-alcune-riflessioni/
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