Julie Stone Peters argues that a foundational pillar of the law is its performance. Four principles support her claim: performance produces law; “law’s aesthetic power” emphasises its importance, “stagers” use performance to enforce law, and performance is rooted in theatricality [1]. How do these principles apply to restorative justice conferencing (RJC) in criminal law? While RJC is not strictly law, as its reparation agreements usually lack binding force, a law-as-performance lens will reveal the minimum formalities required to deliver justice in a complex society. 

RJC, with its victim-centred approach, removes the scripts we take for granted. For example, the offender generally invokes their right to silence, and the victim is sidelined as a witness. RJC are voluntary, non-adversarial encounters between the victim and offender to promote the victim’s agency and the offender’s responsibility without the state’s adversarial presence. 

RJC fulfils Peters’ first principle easily; RJ automatically categorises the stakeholders as the “offender” or the “victim” before the encounter begins, regardless of any moral complexities in the original offence. These roles carry expected behaviours for stakeholders; the offender should take accountability, and the victim should find closure. However, scripts do not exist like in the traditional criminal justice system; RJC moves at the stakeholders’ pace and may not even result in resolution. Secondly, “law’s aesthetic power” is minimal in RJC. The setup is generally face-to-face in the community rather than a courtroom and does not contain the traditional symbolism like a judge’s garb or gavel. RJC’s underlying goal is to emphasise the broken social bond between the victim, offender and community; a preoccupation with aesthetics will layer a blanket of professionalism and demote the stakeholders’ agency. Thirdly, the facilitator or “stager” will record any reparation agreement, but its performance will not take on a life of its own. The stakeholders will together determine the reparations suitable to their needs. If the performance required an apology from all offenders undergoing an RJC, the apologies without remorse are meaningless and disempowering for the victim, thereby defeating the purpose of an RJC. Lastly, genuine expression of emotion is welcome; however, theatricality will hinder the development of an interpersonal relationship.

Only Peters’ first principle holds for RJC: performance produces “law”. After all, the stakeholders must believe their role is their identity to obtain the empowering benefits of RJC. Without their performance, an RJC is not restorative; any recorded reparation agreement will simply be words on a page without the force of law, and justice will not be served.

 

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[1] Peters, J. S. (2022). Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe. Oxford University Press, 5.