The Story of Restorative Justice History

Myth in Restorative Justice History Douglas J. Sylvester* I. In 1935, Cecil B. DeMille released his cinematic vision of The Crusades.1 Starring Loretta Young as Princess Berengaria and Richard Wilcoxon as King Richard the Lionhearted, the film promised “[w]onders to dazzle the human imagination—in a flaming love story set in titanic world conflict!”2 Ultimately, however, The Crusades’ sweep of history is more dizzying than dazzling: King Richard undertakes the crusade in an effort to avoid marrying a woman he does not love, Alice, the sister of King Philip of France. This, of course, allows for great cinematic tension as Philip accompanies Richard on the crusade. As Richard’s army reaches Marseilles, they are in dire straits, desperately short of food and supplies. Richard, ever the good leader—and no longer so concerned about marrying a woman he does not love—agrees to marry princess Berengaria of Navarre in return for 7,000 cattle, some grain, and other provisions. Of course, once Richard spies the young lass he is smitten. As Richard and his cohorts approach the holy land, Saladin, the leader of the Muslim horde, meets them. Suffice to say, the meeting does not go well and, in the confusion that follows, Saladin carries young Berengaria off to Jerusalem to be part of his harem—Richard in hot pursuit. As one might expect in these matters, Saladin is quickly entranced by Berengaria’s womanly charms and seeks to keep her for himself by offering to make her a powerful figure in Jerusalem—an offer she refuses out of (apparent) devotion to Richard. As the movie nears its climax, Berengaria pleads with Saladin to spare Richard’s life (which he does) and pleads with Richard to make peace with Saladin (which he does). Saladin is so moved by Richard’s love that he agrees to open up Jerusalem to all (save Richard), release Associate Professor of Law, The College of Law at Arizona State University and Fellow, Center for the Study of Law, Science, and Technology. Special thanks to Erik Luna for organizing the Symposium and for his many helpful comments and suggestions on this and other papers. Thanks also to Guyora Binder, Andrew Cohen, Kirsten Davis, Geoffrey Manne, Jonathan Rose, and Mark Schultz. Thanks also to Marianne Alcorn, David Burkett, Jay Calhoun, Jennifer Murray, Michelle Rigual, and Anna. 1 THE CRUSADES (Universal Studios 1935). 2 Internet Movie Database, Inc., Taglines for The Crusades (1935), at http://us.imdb.com/Taglines?0026249 (n.d.). * 471 472 UTAH LAW REVIEW [2003: 471 all hostages (including Berengaria) and, as Crusaders march into Jerusalem singing, Berengaria returns to Richard’s arms. The end. Although a box office success, the movie was largely panned by the critics. Time magazine declared it “historically worthless, didactically treacherous, [and] artistically absurd.”3 DeMille, seemingly content with critiques of the film’s artistic value, defended against attacks that it lacked historical or educational worth: “The Crusades is a good example of what I call telescoping history . . . . It would be impossible to tell the story [of all of the Crusades] in two hours of film. Audiences are not interested in dates, but in events and their significance. And they do not want to be educated, but entertained.”4 DeMille is certainly correct that his telescoping does little to educate audiences about history. In The Crusades, DeMille did far more than just compress history—he invented it outright: Numerous medieval crusades, taking place over centuries, were compressed into one single campaign. Richard’s armies never approached Jerusalem. His mother, Eleanor of Acquitane, for political gain, arranged his marriage to Berengaria. Missing from the movie is Richard’s decision to massacre over 2500 Saracen hostages at Acre. Richard withdrew from the Crusades after a lengthy illness; and (there is little doubt of this) at no time was Berengaria a consort of Saladin’s harem! Although entertaining, there is little doubt that as history5 The Crusades is not very enlightening. At the same time DeMille was defending his use of history for entertainment, a well-regarded historian was taking an opposite view. Louis Gottschalk, thenUniversity of Chicago President, was so disturbed by entertainment history that TIME, Sept. 2, 1935, at 38. Graham Greene also had some choice words for the film, comparing it to garish illustrations in Victorian bibles: “ There is the same complete lack of period sense, the same stuffy horsehair atmosphere of beards and whiskers, and, their best quality, a childlike eye for detail.” See AMC Guide, Show Preview: The Crusades (1935), at http://www.amctv.com/ (n.d.) (Keyword = Crusades). 4 Capitol Hill Arts Workshop, Films on the Hill, at http://www.filmsonthehill.com/F-35Crusades.html (n.d.) (quoting Cecil B. DeMille). 5 For a comprehensive history of the Crusades, see JAMES A. BRUNDAGE, THE CRUSADES: A DOCUMENTARY SURVEY (1962). 3 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 473 he wrote a missive to MGM Story-Editor Samuel Marx.6 A self-described “movie fan,” Gottschalk claimed to have “seen a large number of historical films,” and was deeply bothered by their “striking historical inaccuracies.”7 He chided Hollywood for failing to live up to its “higher ideals” by embracing these historical inaccuracies and argued “the cinema art . . . owes it to its patrons . . . to achieve greater accuracy.”8 Gottschalk, however, did not see himself as some ivory-tower critic. Instead, he offered a concrete solution to entertainment history’s pitfalls: “No picture of a historical nature ought to be offered to the public until a reputable historian has had a chance to criticize and revise it.”9 Leaving aside the obvious naïveté of Gottschalk’s solution, most would consider his position on entertainment history more defensible than DeMille’s. After all, history is, well, history and to distort it is wrong, right? This dispute over entertainment history is reminiscent of an all-too familiar debate between historians and lawyers over law-office or lawyer’s history.10 Historians have long bemoaned the loose history that lawyers employ to win arguments.11 At the center of these debates are historians’ claims that history should not be used for forensic ends,12 that it should be accurate and set in proper Letter from Louis Gottschalk, President of the University of Chicago, to Samuel Marx, StoryEditor, MGM Studios (Apr. 18, 1935) [hereinafter Gottschalk Letter] (on file with Utah Law Review). It appears that Marx wished to hire Gottschalk as a historical consultant for the making of A Tale of Two Cities. In his letter, Gottschalk turned down Marx’s offer, although “had the request come less unexpectedly, I might have been able to arrange my obligations here to suit your convenience.” Id. Following his “exchange of telegrams” with Marx, Gottschalk writes, he feels he has the “right to bring to [Marx’s] attention a matter upon which I would long ago have written” regarding Hollywood’s historical inaccuracies. Id. 7 Id. Gottschalk specifically mentioned Voltaire, The House of Rothschild, Catherine the Great, Henry VIII, and The Scarlet Pimpernel. Id. 8 Id. 9 Id. Peter Novick characterized the solution as “quixotic.” PETER NOVICK, THAT NOBLE DREAM: THE “OBJECTIVITY QUESTION” AND THE AMERICAN HISTORICAL PROFESSION 194 (1988). 10 John Phillip Reid, Law and History, 27 LOY. L.A. L. REV. 193, 197 (1993) (“Lawyer’s history has been called a ‘stark, crabbed, oversimplified picture of the past, developed largely to plead a case,’ and law office history has been described as ‘the selection of data favorable to the position being advanced without regard to or concern for contradictory data or proper evaluation of the relevance of the data proffered.’” (quoting Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119, 122 n.13 (1965))). 11 E.g., FREDERIC WILLIAM MAITLAND, Why the History of English Law Is Not Written, in 1 THE COLLECTED PAPERS OF FREDERIC WILLIAM MAITLAND 480, 490–91 (H.A.L. Fisher ed., 1911); J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW 8 (1957); William Winslow Crosskey, Charles Fairman, “Legislative History,” and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1, 4 (1954); Martin S. Flaherty, History “Lite” in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 554 (1995) (noting that legal scholars often “pick and choose facts and incidents ripped out of context” to serve their own purpose); Reid, supra note 10, at 197. 12 John Reid seems to have coined the phrase, forensic history. See Reid, supra note 10, at 203. 6 474 UTAH LAW REVIEW [2003: 471 context.13 The cry of “leave history to the historians” has just as often been leveled at lawyers as at Hollywood producers. Restorative justice literature has not been immune from these critiques. Oddly enough, no historian has yet to excoriate restorative justice scholars’ apparent historical abuses; the attacks have come from within.14 Kathleen Daly, a restorative justice advocate and noted criminologist, has accused restorative justice scholars of employing historical arguments to create an “origin myth.”15 Daly has taken these scholars to task for their superficial and selective historical accounts, charging restorative justice history with creation of a “pre-modern past [that] is romantically (and selectively) invoked to justify a current justice practice.”16 Put simply, Daly believes that these mythical ploys are “in error” and may ultimately injure the cause.17 Daly’s charge of mythmaking is clearly more damning than Gottschalk’s plaints of mere inaccuracy. Mythmaking implies an intentional reconfiguring of the past to influence current events. Thus, mythical histories are not just humorously or negligently inaccurate; they are intentionally fictive and misleading. In addition, “myth” conjures up more than just inaccuracy. A reconfiguration of historical events or narratives into mythical yarns entails an insertion of fantasy into the story. The dreamlike quality of the mythical past is presented as an alluring epoch to be readopted, relived, and resurrected—it inspires a yearning to correct modern behavior to conform with the past.18 As Percy Cohen has noted: “There is certainly an element of myth in a good deal of interpretation of history . . . . There is . . . truth in the assertion . . . that in much . . . history, past epochs are often reconstructed with the full cooperation of fantasy.”19 Thus, mythmaking not only represents the presentation of a distorted past, but also the forensic use of fantastic narratives to influence current attitudes or choices. “An historical myth feeds upon a grand vision of the past; also, in most cases hardly consciously, though in some very much so, upon a grand vision See KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 35 (1999); Flaherty, supra note 11, at 554; Jefferson H. Powell, Rules for Originalists, 73 VA. L. REV. 659, 661 (1987). 14 See, e.g., Kathleen Daly, Restorative Justice: The Real Story, 4 PUNISHMENT & SOC’Y 55, 56 (2002). 15 Id. at 63. 16 Id. 17 Id. To be fair, Daly does note that restorative justice scholars may feel a need to create this false history, see id., an issue this Article addresses in Part VI. 18 Of course, myths can just as easily be constructed to demonstrate the undesirability of the past—as a reminder of what can happen if certain institutions are neglected or certain activities are undertaken. See infra notes 48-54 and accompanying text. 19 Percy S. Cohen, Theories of Myth, 4 MAN 337, 352 (1969) (“In so far as some history or pseudo-history allows some scope to fantasy, tends to interpret the past in such a way as to anchor the present in a series of significant events, and acquires a sacred character, it has some of the qualities of a myth. It is a vestigial myth.”). 13 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 475 of the future.”20 Thus, mythmaking is far different than the presentation of history.21 It is a pejorative, a claim of illegitimacy, and a critique of the method and, often, the ambition of its authors. As for restorative justice history, Daly and Gottschalk’s critiques have merit. Those pushing restorative justice narratives are not historians,22 and their methodologies are suspect, both in their choice of evidence and interpretation.23 Indeed, they use the past in fanciful ways, selectively arranging data and characterizing the relevant actors and cultures as imbued with profound powers of forgiveness and mercy.24 To the extent the histories lapse into mythical narratives, it is difficult to defend them. Yet, even if restorative justice histories are mythical or inaccurate, does this mean that Gottschalk and his minions are correct? Put another way—is there a time and place for allowing history to be bent to serve modern ends? This Article argues that, with limitations, a more malleable approach to history can be employed for forensic use. Put simply, history, when partially or inaccurately portrayed, may add to its transformative value. To insist on “accurate” history, it is argued, is to render history all but meaningless for influencing modern debate—a result that is too hard to justify strict adherence to historicist canons. That said, we should recognize that some limits need to be placed on the use of history—mythmaking is, as already said, to be avoided. To make these points, this Article does not focus on the traditional legal/historical literature. Instead, it draws important lessons from Hollywood’s uses of history. In particular, by looking at the narrative uses of history in film, it is possible to see that an all-too rigid adherence to historical accuracy renders history too cumbersome to have value in shaping present-day ideologies and institutions. As Hollywood has long understood, bending history is sometimes necessary if the goal is to entertain, educate, or influence. Yet, as everyone who watches movies has also noted, Hollywood can sometimes go too far. A brief examination of three historical films, connected by subject matter and authorial intent, reveals both the benefits and dangers of malleable history. An ambitious goal of this discussion, therefore, is to seek through entertainment G.J. RESINK, INDONESIA’S HISTORY: BETWEEN THE MYTHS 15 (1968). William Bascom, The Forms of Folklore: Prose Narratives, in SACRED NARRATIVE: READINGS IN THE THEORY OF MYTH 5, 9 (Alan Dundes ed., 1984) (“Myths are prose narratives which, in the society in which they are told, are considered to be truthful accounts of what happened in the remote past. They are accepted on faith, they are taught to be believed, and they can be cited as authority in answer to ignorance, doubt, or disbelief. Myths are the embodiments of dogma . . . .”). 22 The main proponents are: Elmar Weitekamp (criminologist), Daniel Van Ness (criminologist), John Braithwaite (criminologist and philosopher), Jim Consedine (priest in Diocese of Christchurch and national coordinator for New Zealand’s Restorative Justice Network), and Howard Zehr (former director of Mennonite Central Committee U.S. Office on Crime and Justice). 23 See infra Part V. 24 See infra Parts V.A & V.B. 21 20 476 UTAH LAW REVIEW [2003: 471 history, and its reception by historians and social science critics, some rules for navigating the line between accurate, inaccurate, and mythical histories. Although the goal is ambitious, the ultimate prescriptives, I am afraid, are less so. As I hope the reader will understand, this is not an attempt to create a new genre of acceptable entertainment history or inaccurate history that will appeal to historians, film critics, public figures, or the public at large. Instead, it is a rumination, perhaps, on the possibility that those seeking to influence current events be permitted to use history, rather than merely present it, while still maintaining broad (and admittedly likely to be abused) limitations on such use. These caveats aside, I feel the reader deserves one more. At this point, a reader seeking to review an Article in this wonderful Symposium, and drawn to mine by its title, may well wonder, “what does this paper have, if anything, to do with restorative justice history?” Well, quite frankly, Parts II, III, and IV do not directly address restorative justice history. Instead, these Parts lay out the framework for assessing the excesses and, more important, the usefulness of the histories presented in later Parts. For those only interested in my critique (as it most certainly is) of how restorative justice histories have been constructed, those issues are addressed in Parts V and VI. Although my ultimate prescriptives may seem a little out of place without reading the earlier Parts, I will not be hurt (and indeed, will never know) if these are skipped. That said, on with the show. II. At the base of this Article is a view, generally uncontroversial, that history matters. Among professional historians, history is of such import that, frankly, it cannot be left to amateurs. The fact that amateur “historians” (read: screenwriters, directors, and producers) employ history in certain films is, therefore, per se objectionable and reason enough to reject their legitimacy.25 As one film historian has noted, “academics seem [unwilling] to consider the possibility that filmmakers may have as much right to think about the past as do historians.”26 This cognitive monopoly is based, in part,27 on a view that entertainment history is essentially fictive and purposeful.28 Historians view their role as “that of a neutral, or disinterested, judge,” and history in their hands “must never degenerate into that of advocate or, even worse, propagandist.”29 Since See infra Part V. ROBERT A. ROSENSTONE, VISIONS OF THE PAST 7 (1995). 27 Of course, there are a number of possible motivations, including full employment for historians or, more likely, part of the ongoing struggle of “professional” historians to wrest “history” away from the amateur historians of the day. See generally NOVICK, supra note 9. 28 Yet, as historians are acutely aware, true accuracy and complete objectivity are impossibilities. E.g., LAURENCE LERNER, THE FRONTIERS OF LITERATURE 60 (1988). 29 NOVICK, supra note 9, at 2. 26 25 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 477 entertainment history must, as a necessity, advocate a position or theme30—even if the theme is little more than what is perceived to be entertaining—it is inherently purposeful.31 Accuracy is too easily thrown aside in favor of plot, pace, and development.32 As a result, many historians cannot justify (in the name of accuracy and objectivity) Hollywood’s purposeful history and despair at the prospect of its influence.33 Despite historians’ eternal quest for objectivity and neutrality,34 they recognize that history matters because it has transformative and reinforcing utility.35 “[I]t is important to know what the majority in a society believes to be true [about its past] at a given point in time, for people act upon what they believe to be true.”36 History shapes societal and institutional memories and, as a result, shapes current views about the continuity of traditions, narratives, and ideologies. Traditions, myths, and narratives are important tools for shaping current beliefs because, by necessity, they are the materials by which society forms opinions about itself.37 History in Hollywood is seen as particularly important for the influences it may have on present-day attitudes—not all of them beneficial. “Over the past century, the power of historians and filmmakers to influence the public, to reflect and shape attitudes and popular prejudices, has been amply demonstrated, often with tragic consequences.”38 Historians view Hollywood’s influence as nefarious precisely because it is poorly and uncritically presented (and we can assume, Robert Brent Toplin, Ken Burns’s The Civil War as an Interpretation of History, in KEN BURNS’S THE CIVIL WAR: HISTORIANS RESPOND 17, 21 (Robert Brent Toplin ed., 1996) [hereinafter KEN BURNS’S THE CIVIL WAR] (“This element of bias is manifested in the way a filmmaker selects evidence. Choice is fundamental in the filmmaker’s work with sources.”). 31 As Deborah Cartmell and I.Q. Hunter have noted, entertainment history is “postmodern” in the sense that it views history, whether truthful or not, as a source for change. Deborah Cartmell & I.Q. Hunter, Retrovisions: Historical Makeovers in Film and Literature: Introduction to RETROVISIONS: REINVENTING THE PAST IN FILM AND FICTION 1, 2–3 (Deborah Cartmell et al. eds., 2001). 32 Id. at 2 (“Films, to the despair of historians, have always taken a ‘postmodern’ approach to the past, viewing it not as a dull chronicle but as a dynamic resource for exciting stories and poetic, morally uplifting untruths.”). 33 See id. 34 See Hayden White, Historiography and Historiophoty, 93 AM. HIST. REV. 1193, 1193 (1988). 35 Hayden White, The Value of Narrativity in the Representation of Reality, in ON NARRATIVE 1, 14 (W.J.T. Mitchell ed., 1981) (“[I]t seems possible to conclude that every historical narrative has as its latent or manifest purpose the desire to moralize the events of which it treats.”). 36 Bascom, supra note 21, at 13. 37 Id. at 9 (“Myths are prose narratives which, in the society in which they are told, are considered to be truthful accounts of what happened in the remote past. They are accepted on faith, they are taught to be believed, and they can be cited as authority in answer to ignorance, doubt, or disbelief.”). 38 Leon F. Litwack, Telling the Story: The Historian, the Filmmaker, and the Civil War, in KEN BURNS’S THE CIVIL WAR, supra note 30, at 119, 122. 30 478 UTAH LAW REVIEW [2003: 471 accepted): “Historians had better accept that, whether we like it or not, history is regularly being represented in film, and usually more often than not, uncritically.”39 If history has this transforming or reinforcing utility then the danger is that it can be misrepresented, misused, poorly constructed, or mishandled.40 This perception has increasingly led historians to seek a greater role, á la Gottschalk, in how Hollywood portrays history.41 Historians’ increasing attention to entertainment history implicates the discipline’s deepest theoretical issues. As noted earlier, questions of objectivity, narrative, perspective, and neutrality represent historians’ holy grails and have spawned an immense, and certainly dense, literature.42 Historians that have attempted to bring entertainment history under the thumb of a dogmatic historiography generally conclude that the more popular forms of entertainment history must be discarded as historically worthless.43 In general, historians have taken the role of movie critics—seeking to correct historical abuses through largely irrelevant (to those actually influenced by entertainment history) academic writing and conferencing. As a result, most historians’ approach to entertainment history has been overly pessimistic and suspicious—they recognize entertainment history’s influence but view such effects as entirely bad. It seems as if most historians believe “bad history” is the same as “bad results.” Yet, there would seem to be many reasons why this is not necessarily so. Bad history may nevertheless have many beneficial effects. Some, although not many, historians have come to see entertainment history as having such influence.44 Couched in a postmodern ethic, these historians see entertainment history as a vehicle for moving history away from a Foucaultian focus on societal forces and institutions, to a renewed interest in literary models that elevate the 39 R.C. Raack, Historiography as Cinematography: A Prolegomenon to Film Work for Historians, 18 J. CONTEMP. HIST. 411, 412 (1983); see also Vivian Sobchack, History Happens: Introduction to THE PERSISTENCE OF HISTORY: CINEMA, TELEVISION, AND THE MODERN EVENT 1, 7 (Vivian Sobchack ed., 1996) [hereinafter PERSISTENCE OF HISTORY] (“Current debates around the nature, shape, and narration of history are no longer only the province of academic historians and scholars of film and literature.”). 40 See Litwack, supra note 38, at 123 (“The way history is interpreted, taught, and portrayed on the screen does have consequences.”); see also Raack, supra note 39, at 412 (“Unfortunately, a film . . . may convince when it is produced with no concern for the truth, or deliberately to misinform . . . . Widely viewed, but largely without critical supervision, it is dangerous, but influential.”). 41 As a result, Hollywood has often hired academic historians as consultants for historical films. See ROSENSTONE, supra note 26 (advisor to Reds); Toplin, supra note 30 (advisor to The Civil War). 42 See supra notes 34–37 and accompanying text. 43 E.g., Shawn Rosenheim, Interrotroning History, in PERSISTENCE OF HISTORY, supra note 39, at 219, 219–20. 44 See PERSISTENCE OF HISTORY, supra note 39, and articles set forth therein (discussing ways in which film and television respond to and create contemporary history). No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 479 individual to the forefront of historical narratives.45 As one historian has noted, entertainment history has resulted in the restoration of “‘individual human beings to history where social science had more or less written them out.’”46 Of course, this postmodernist conceit is equally available for less desired ends, as we shall see. Yet, it is also a message of individual empowerment—the ability to overcome and transform the institutions that surround. Placed in “proper” messages, these empowering narratives can inspire individuals to change, hopefully for the better. As I have hinted, much of the criticism leveled at entertainment history has also been directed toward legal argument. Legal history is consistently decried by historians for its overtly propagandist narratives and inaccuracies.47 Yet, one advantage that legal history has over entertainment history is that there is little debate over its utility. The nexus between history and its influence in legal culture is much easier to identify than entertainment history’s impact on public attitudes and institutions. As Robert Gordon has noted: “For lawyers the past is primarily a source of authority—if we interpret it correctly, it will tell us how to conduct ourselves now.”48 Gordon is right—it appears that even where history is misinterpreted or misrepresented, it has tremendous influence in law if it is properly packaged. Lawyers are acutely aware of history’s power in defining current argument and, by result, shaping current institutions and perceptions. Accuracy has never been a requirement for this to work, as evidenced by the numerous books and articles that point out examples where “bad” history furthered a particular agenda.49 Invocations of history tap into law’s past-dependent (and, of course, path-dependent) and traditionalist nature.50 Hollywood often uses history and narrative to shape our views of a proper society. Politicians frequently appeal to history to validate their own personal campaigns. And lawyers, as we are so painfully aware, use history as a “source of authority [that] reassures us that what we do now flows continuously out of our past.”51 To make historical arguments, lawyers employ a forensic method. As John Reid has stated, such uses of history are forensic in that the practitioner E.g., Robert A. Rosenstone, The Future of the Past: Film and the Beginning of Postmodern History, in PERSISTENCE OF HISTORY, supra note 39, at 202–04. 46 Cartmell & Hunter, supra note 31, at 3 (quoting RICHARD J. EVANS, IN DEFENCE OF HISTORY 248 (1997)). 47 See supra note 11 and accompanying text. 48 Robert W. Gordon, Foreword: The Arrival of Critical Historicism, 49 STAN. L. REV. 1023, 1023 (1997). 49 See supra notes 9-11 and accompanying text. 50 Of this second use of history, to support current institutions, practices, or ideologies, there is a certain sense of “traditionalism” or, as one scholar has put it, the “dead faith of the living” that past institutions should be continued because they are part of our “tradition.” JAROSLAV PELIKAN, THE VINDICATION OF TRADITION 65 (1984). 51 Gordon, supra note 48, at 1023. 45 480 UTAH LAW REVIEW [2003: 471 searches the past for material applicable to a current issue. The purpose of the advocate, unlike that of the historian, is to use the past for the elucidation of the present, to solve some contemporary problem or, most often, to carry an argument. It is the past put in the service of winning the case at bar.52 This forensic use of history, or law-office or lawyer’s history as it is often called, has been “put it to work in argument, justification, and rationalization.”53 History in the service of the law is obviously purposeful and lawyers generally employ it in one of three ways: (i) legitimation; (ii) revisionism; and (iii) complication.54 First, history can serve to legitimize current institutions; appealing to tradition, history is often all that is needed to support currently dominant institutions.55 For revisionist uses, history seeks to undermine current perceptions, ideologies, or regimes and seeks to either: (i) demonstrate the invalidity of current regimes by demonstrating their illegitimate rise; and/or (ii) reveal how history has long supported a different approach that is more in line with societal, political, or other current values.56 The final use is more “historical” in nature in that it seeks not to revise or legitimate, although it may certainly have that effect, but rather to complicate settled doctrine and understanding often, in legal circles, with the intent of making further revisionist or legitimating arguments on other grounds.57 The three uses of history set forth above are all obviously dynamic uses where “lawyers recognize historical change but establish connections between past and present through stories that integrate them into a reassuring narrative of continuity.”58 Among the various uses of history, Gordon has identified what he terms a “narrative of recovery.”59 According to Gordon: “A narrative of recovery, often accompanied by a jeremiad lamenting recent lapses and corruptions, is one in which the legal system is seen as ready to be guided to recover the purity of its original principles.”60 This narrative form appears to be inherently revisionist, seeking to replace current institutions or attitudes with those of an imagined and 52 John Phillip Reid, The Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries, in THE ROOTS OF LIBERTY: MAGNA CARTA, ANCIENT CONSTITUTION, AND THE ANGLO-AMERICAN TRADITION OF RULE OF LAW 147, 167 (Ellis Sandoz ed., 1993). 53 Gordon, supra note 48, at 1023. 54 These three categories closely track a nietzschean vision of history’s usefulness (to the extent it is useful at all). See FRIEDRICH NIETZSCHE, THE USE AND ABUSE OF HISTORY 12–17 (Adrian Collins trans., 2d ed. MacMillan 1957) (1873). 55 See Gordon, supra note 48, at 1023. 56 See id. at 1023–24. 57 See id. at 1028. 58 Id. at 1023. 59 Id. 60 Id. No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 481 (presumably) romanticized past.61 This specific narrative choice is particularly useful for reform-minded legal theorists. Seeking to overturn the tyranny of the present and its chosen institutions and attitudes, the reformer looks to the past for two related foundations: (i) to demonstrate that the way things are today are not the way they always were; and (ii) that the way things used to be were better.62 As we shall see, restorative justice scholars have liberally employed this particular narrative form. Well, enough of historians and lawyers. Let’s get on with the movies. III. Three productions, D.W. Griffith’s 1915 The Birth of a Nation,63 the 1979 television miniseries Roots,64 and the 1989 PBS miniseries The Civil War,65 offer a spectrum of entertainment history that illustrate its dangers and benefits. Viewed as a continuum, from worst to best, these three films represent a rough outline of the uses of entertainment history and serve as the basis for the creation, or culling, of some basic ground rules for using history in support of particular ends. In the end, these three examples of entertainment history have been chosen because they share similar characteristics. Each represents an attempt to use history to affect modern perceptions and institutions: The Birth of a Nation to support and consolidate emerging institutions; Roots to challenge historical notions of slavery as an institution and its effects on the individuals implicated by its processes; and The Civil War as an attempt to undo some of the damage caused by The Birth of a Nation and to create a new understanding of the Civil War and racial issues in the United States. A. The Birth of a Nation Without question, The Birth of a Nation is entertainment history’s nadir. Griffith’s film explicitly relied upon falsified historical narratives to tell the story of the Civil War and Reconstruction as a “bold attempt to Africanize the ten great states of the American Union.”66 Griffith’s racial agenda is clear from the outset as he contrasts the pre-Civil War South—a place of idyllic racial relations with happy slaves dancing for their benevolent masters, where “life runs in a quaintly See id. See id. (discussing “narrative of recovery”). 63 THE BIRTH OF A NATION (D.W. Griffith 1915). Although broken into individual sequences, the film is available online at http://www.uno.edu/~drcom/Griffith/Birth/CW.html. 64 ROOTS (Warner Studios 1977). 65 THE CIVIL WAR (PBS Video 1989). 66 Everett Carter, Cultural History Written with Lightning: The Significance of The Birth of a Nation, 12 AM. Q. 347, 348 (1960) (citing subtitle used in the film). 62 61 482 UTAH LAW REVIEW [2003: 471 way that is no more,”67—with the “coldness, harshness, [and] mechanical inhumanity” of the racially corrupt North.68 In Griffith’s own words, the movie was made “‘to create a feeling of abhorrence in white people, especially white women, against colored men.’”69 Equally as clear as the film’s racial agenda is Griffith’s decision to use history to drive his point home. The film is explicitly historical in its subject matter—using the Civil War and Reconstruction as the setting for articulating Griffith’s view that blacks, released from their servile position below dominant whites, represent a grave sexual and physical threat to whites and, most importantly, to white women.70 In this way, these seminal events in United States history are now recast, in part, as attempts by northern blacks, mulattos, and “corrupted”71 whites to remove antimiscegenation laws.72 Griffith fills the screen with images of politically empowered blacks and their “corrupted” northern-white politicians seeking to gain political and legal authority for interracial marriage.73 Just as Griffith attempts to deliver his message “that the secret desire of every black is to sexually possess a white”74 through historical scenes, the “plot” of the movie revolves around a series of attempted rapes by freed blacks, a white politician’s desire to sexually possess a mulatto woman, and black violence against white families.75 Id. at 351. Id. at 350–51. 69 Michael Rogin, “The Sword Became a Flashing Vision”: D.W. Griffith’s The Birth of a Nation, 9 REPRESENTATIONS 150, 176 (1985) (quoting D.W. Griffith); see also Jack Temple Kirby, D.W. Griffith’s Racial Portraiture, 39 PHYLON 118, 120 (1978) (“Griffith’s greatest indulgence in the black-as-beast theme was in Birth of a Nation.”). 70 See Carter, supra note 66, at 352–53; Rogin, supra note 69, at 175–76; see also Leon F. Litwack, The Birth of a Nation, in PAST IMPERFECT 136, 138–39 (Mark C. Carnes ed., 1995) (“Through its vivid and unforgettable images, the film impressed on Americans a certain version of reality. Reconstruction, proclaimed one of the intertitles, was ‘the agony which the South endured that a nation might be born.’ The camera graphically captures the lurid details of that ‘agony’: Impudent, ungrateful, venal black men, their ambitions bloated by emancipation and civil rights, terrorize helpless whites . . . and leer[] at their women. Blacks brandish signs reading, ‘Equal Rights, Equal Politics, Equal Marriage.’”). 71 The Birth of a Nation portrays white northerners as having been corrupted by their lust for black women. Carter, supra note 66, at 352–53; Brian Gallagher, Racist Ideology and Black Abnormality in The Birth of a Nation, 43 PHYLON 68, 71–72 (1982); see also Rogin, supra note 69, at 163 (“Ralph Lewis, as Austin Stoneman, orchestrates the white South’s punishment in Birth out of his passion for a female mulatto.”). 72 See id. at 175–76. 73 Id. Viewers of the film will note various scenes, although not often pointed to as a part of the film’s larger racial message, depicting freed blacks carrying signs demanding the repeal of antimiscegenation laws. 74 MARLETTE REBHORN, SCREENING AMERICA: USING HOLLYWOOD FILMS TO TEACH HISTORY 27 (1988). 75 See Kirby, supra note 69, at 121; Litwack, supra note 70, at 139; Rogin, supra note 69, at 175–76. 68 67 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 483 As blacks, mulattos, and corrupt (i.e., desirous of black women) northern politicians are the villains, the hero of the movie and the agent of the union’s reforging is the Ku Klux Klan.76 Portrayed as an agent of white justice and social control, the KKK takes action to combat the scourge of released black sexuality—the desire of blacks to assault, wed, or possess white women.77 The KKK comes to the rescue of whites under violent attack by black soldiers,78 takes vengeance against attempted rapists (including a now-cut castration scene),79 and joins with whites everywhere to restore the proper racial order. Unlike The Crusades, The Birth of a Nation was a mainstream critical and commercial success and hailed for its possible didactic usefulness. It was singled out for high praise, surprisingly, for its historical accuracy and import. According to one commentator: “‘A boy can learn more pure history and get more atmosphere of the period by sitting down three hours before the films that Griffith has produced with such artistic skill than by weeks or months of study in the classroom.’”80 Griffith clearly agreed with these historical assessments, and unlike DeMille, saw his art put into didactic service. “‘I believe in the motion picture not only as a means of amusement, but as a moral and educational force.’”81 Griffith’s intent to couch his racist and abhorrent ideologies in history is obvious. Indeed, Griffith was so confident that his film represented historical truth that, according to one source, he “offered to pay $10,000 to Moorfield Storey, president of the NAACP, if he found a single historical inaccuracy in Birth.”82 Griffith assured audiences that they were watching history: “‘You will actually Leon Litwack described the final scenes of the movie: Evoking the film’s spirit and principal theme, the beleaguered Cameron family [Griffith’s southern white family] finds refuge [from marauding black soldiers] in a log cabin occupied by two Union veterans, and they join forces to resist pursuing black soldiers. The intertitle says it all: “The former enemies of North and South are united again in common defense of their Aryan birthright.” Litwack, supra note 70, at 139–40. 77 Carter, supra note 66, at 352–53; Rogin, supra note 69, at 175–76. 78 Litwack, supra note 70, at 140. 79 The scene is described in horrifying detail in Rogin, supra note 69, at 175. 80 Id. at 184 (quoting historian Charles Parkhurst). More famously, President Woodrow Wilson, himself a scholar, teacher, and one-time university president, praised the movie for “writing history in lightning.” Litwack, supra note 70, at 136 (quoting President Woodrow Wilson). In addition, Chicago went wild [on seeing the film]. . . . It started people to thinking. . . . The people of Chicago saw more in The Birth of a Nation than a tremendous dramatic spectacle. They saw in it the reason the South wants to “keep the Negro in his place.” They saw in it a new conception of southern problems. Id. at 140 (internal citations omitted). 81 Rogin, supra note 69, at 185 (quoting D.W. Griffith). 82 Id. at 184. 76 484 UTAH LAW REVIEW [2003: 471 see what happened [in the Civil War and Reconstruction]. There will be no opinion expressed. You will merely be present at the making of history.’”83 The question that remains is why did Griffith seek to tell his tale via history? The answer is obvious from the above discussion—history provided legitimacy to his stories that mere opinion could not. To fit his modern “theory” into history, however, Griffith was forced to make a number of concessions—creating a mythical past, demonstrating how it had been upset by historical events, and demonstrating how current institutions seek to resurrect that past. In the end, The Birth of a Nation attempts to validate resurgent Jim Crow and KKK movements as a necessary correction to the corruption of the late nineteenth century. Not surprisingly, prominent black authors of the period perceived a real and immediate danger from the movie—critical to this view was the understanding that propaganda masquerading as history was far more dangerous than other narrative structures: “‘The Clansman’ did [blacks] much injury as a book, but most of its readers were those already prejudiced against us. It did us more injury as a play, but a great deal of what it attempted to tell could not be represented on the stage. Made into a moving picture play it can do us incalculable harm. Every minute detail of the story is vividly portrayed before the eyes of the spectators. A big, degraded-looking Negro is shown chasing a little golden-haired white girl for the purpose of outraging her; she, to escape him, goes to her death by hurling herself over a cliff. Can you imagine the effect of such a scene upon the millions who seldom read a book, who seldom witness a drama, but who constantly go to the ‘movies’?”84 Propaganda combined with historical narratives claiming truth create a dangerous possibility for action and reaction. B. Roots Although the gulf between the narratives in Roots and The Birth of a Nation is great, there are a number of similarities.85 Each dealt with much of the same ROBERT BRENT TOPLIN, HISTORY BY HOLLYWOOD: THE USE AND ABUSE OF THE AMERICAN PAST 18 (1996) (quoting D.W. Griffith). 84 Lawrence J. Oliver, Writing from the Right during the “Red Decade”: Thomas Dixon’s Attack on W.E.B. DuBois and James Weldon Johnson in The Flaming Sword, 70 AM. LIT. 131, 137 (1998) (quoting James Weldon Johnson, Uncle Tom’s Cabin and the Clansman, N.Y. AGE, Mar. 4, 1915, at 1). 85 As one example, the historical inaccuracies in both The Birth of a Nation and Roots originated in the respective novels that spawned the films. THOMAS DIXON, THE CLANSMAN: AN HISTORICAL ROMANCE OF THE KU KLUX KLAN (1970) (1905); ALEX HALEY, ROOTS: THE SAGA OF 83 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 485 time period and subject matter. More important, each used history to make its normative points. Roots traced the history of author Alex Haley’s ancestors and their experiences as American slaves.86 Using a chronological historical narrative, Roots begins with the capture, in 1767, of Kunta Kinte of the Mandinka tribe of West Africa.87 Kinte’s story is one of a man refusing to forget his past and, in the remembrance, retaining a pride and independence otherwise lost through slavery.88 Kinte continues to tell the story of his capture and of his ancestry (important to the story is that Kinte comes from a proud and powerful family in the tribe)89 to his progeny, until such time as Haley hears the same tale sitting on his grandmother’s porch in Henning, Tennessee.90 Throughout the series, Kinte’s progeny continue to find strength and dignity in the shared remembrance of their mutual history.91 Where The Birth of a Nation depicts blacks as sexual predators to be controlled, Roots emphasizes the dignity and honor of slaves in the face of the oppression, depravity, and violence (physical and sexual) of American slavery and its participants.92 Peppered with gut- and heart-wrenching scenes of slavery’s hardships (and the attitudes of its white participants), Roots is a clear indictment of American racial attitudes as entrenched in social ideology and institutions.93 As noted above, central to the series is the story that Kinte, as a great man of the Mandinka tribe, could not be broken by his enslavement.94 It is the remembrance of his own history, and for his progeny an ancestral one, that empowers. As a matter of historical fact, however, Kinte’s lineage and, indeed, his existence as a true ancestor of Haley are in some question.95 Indeed, over the thirty-plus years since its original airing, most commentators have come to view Roots as a work of fiction.96 At best, Roots is often referred to as a work of “faction”—“fiction which is based on and combined with fact.”97 Indeed, several AN AMERICAN FAMILY (1976). 86 ROOTS (Warner Studios 87 1977). See id. 88 See id. 89 See James A. Hijiya, Roots: Family and Ethnicity in the 1970s, 30 AM. Q. 548, 550 (1978). 90 See ROOTS (Warner Studios 1977). 91 See id. 92 See id. 93 See Margaret Styles Ambrose, Roots: A Southern Symposium, CALLALOO, Feb. 1978, at 124, 125–26 (1978) (detailing scenes in Roots and numerous reactions to airing of miniseries). 94 Hijiya, supra note 89, at 550. 95 See Harold Courlander, Kunta Kinte’s Struggle To Be African, 47 PHYLON 294, 294 (1986). 96 E.g., Hijiya, supra note 89, at 550 (“Roots is largely fictional . . . .”). But see infra notes 122–23 and accompanying text. 97 Robert F. Blomquist, Bottomless Pit: Toxic Trials, the American Legal Profession, and Popular Perceptions of the Law, 81 CORNELL L. REV. 953, 984 (1996); see also Isidore Silver, Libel, the “Higher Truths” of Art, and the First Amendment, 126 U. PA. L. REV. 1065, 1067 n.10 486 UTAH LAW REVIEW [2003: 471 journalists have aggressively declared that “‘[v]irtually every genealogical claim in Haley’s story was false,’”98 and the story represents little more than “a historical hoax.”99 Unquestionably, then, Haley’s film fails to meet Gottschalk’s request for accuracy in its history. Yet, many believe that, had Haley been “true” to history, and presented only factual, provable, and accurate accounts of his ancestors, the narrative import of the story would have been severely compromised. Newsweek, for example, applauded Haley’s combination of fiction and fact, declaring that “[i]nstead of writing a scholarly monograph of little social impact, Haley has written a blockbuster in the best sense—a book that is bold in concept and ardent in execution, one that will reach millions of people and alter the way we see ourselves.”100 Thus, Roots was more than just a work of history, it was an attempt to use history to influence current attitudes. And most agree that it was “successful in changing attitudes, promoting an interest in Black history, and developing strong self-images.”101 This Part began by pointing to Haley’s use of history as similar to Griffith’s. In some ways they are similar. Haley is not tied to historical “truth” any more than Griffith. He is willing to create characters, incidents, and, obviously, dialogue in order to present a compelling vision of the past for express purpose of challenging embedded cultural notions of American slavery and slaves.102 Haley may not have intended to directly refute Griffith’s vision, but he certainly sought to undermine the prevailing imagery and characterization of slavery that The Birth of a Nation represents. In so doing, Haley did not concern himself with Gottschalk’s historical accuracy. Indeed, it is not entirely clear, between The Birth of a Nation and Roots, which is “truer” or more accurate history. Both blur fact and fiction. The Birth of a Nation takes some historical characters and disguises them as fictional ones103 (1978) (suggesting that Roots may have inspired term). 98 Eric Fettmann, The Celebrated ‘Roots’ of a Lie, N.Y. POST, Jan. 16, 2002, at 25 (quoting journalist Philip Nobile). 99 Id. 100 Paul D. Zimmerman, In Search of a Heritage, NEWSWEEK, Sept. 27, 1976, at 94, 95. See also id. at 94 (noting that “Haley’s saga is a mixture of fact, fiction, and myth.”); Alex Haley, at http://www.africanpubs.com/Apps/bios/0800HaleyAlex.asp?pic=none (n.d.). 101 Robert E. Stephens, The Role of Educational Media in Minority-Related Education, 29 NEGRO EDUC. REV. 33, 36 (1978); see also Halford H. Fairchild et al., Impact of Roots: Evidence from the National Survey of Black Americans, 16 J. BLACK STUD. 307, 316 (1986) (noting Roots “may have stimulated . . . Black consciousness”); Stuart H. Surlin, Race and Authoritarianism: Effect on the Perception of Roots, 12 J. BLACK STUD. 71, 77–82 (1981) (demonstrating how Roots impacted different social groups’ views on slavery, race, and American institutions). 102 See supra notes 86–93 and accompanying text. 103 For example, the character “Austin Stoneman is modeled on Thaddeus Stevens, the Republican congressman who advocated a radical transfer of political power to the freedmen.” Gilder Lehrman Inst. of Am. History, Slavery in American Film, at No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 487 while Roots clothes some apparently fictional characters with historical legitimacy.104 Each focuses on a single narrative, The Birth of a Nation focusing on white fears of black freedom, and Roots choosing to show slavery and race relations in the United States in their most barbaric and inhumane light. Finally, each seeks to influence the present through history. That said, however, there are some significant differences. Before we get to that, however, it makes sense to look at a third film that represents a very different approach to historical accuracy. C. The Civil War As we move along a spectrum of historical rigor we find Ken Burns’s The Civil War105 at, perhaps, the pinnacle of entertainment history qua history. Chosen for this Article because it focuses on many of the same issues and questions as the previous two films, The Civil War has taken history far more seriously (or at least rigorously) than the other two. Like Roots, this film is also a miniseries and comprises over eleven hours of aired film and commentary. In the space of those eleven hours, Burns presents the Civil War in documentary fashion—using archival footage, period-writing, and historical commentary from Gottschalk’s long-sought after “reputable” historians.106 The mere fact that The Civil War is told in documentary style is not by itself sufficient to grant it status as historically accurate. There have been numerous other documentaries that historians have been quick to criticize as antihistorical and false.107 Historians, however, have largely praised Burns’s vision. C. Vann Woodward’s contribution to a book about the miniseries details the numerous historians who have praised the movie for its blending of “‘scholarship and entertainment.’”108 Robert Brent Toplin has also praised Burns’s film for “demonstrat[ing] the relevance of the present for shaping an understanding of the past.”109 http://www.gliah.uh.edu/historyonline/slaveryfilm.cfm (last updated Mar. 13, 2003). 104 See supra notes 95–97 and accompanying text. 105 THE CIVIL WAR (PBS Video 1989). 106 Two historians in particular played a crucial role in making the series: Shelby Foote, author of a three-volume work on the Civil War, 1–3 SHELBY FOOTE, THE CIVIL WAR (1974), and Barbara Fields, Professor of Southern History at Columbia University. 107 To choose one isolated example, documentary filmmaker Jill Godmilow lambasted The Wonderful, Horrible Life of Leni Riefenstahl as a “corrupt document.” See Interview by Ann-Louise Shapiro with Jill Godmilow, How Real Is the Reality in Documentary Film?, 36 HIST. & THEORY 80, 98 (1997). 108 C. Vann Woodward, Help from Historians, in KEN BURNS’S THE CIVIL WAR, supra note 30, at 3, 13 (quoting Letter from Donald E. Fehrenbacher, Lincoln Scholar, Stanford University, to Ken Burns (Nov. 2, 1988)). 109 Toplin, supra note 30, at 36. 488 UTAH LAW REVIEW [2003: 471 Like Roots and The Birth of the Nation, Burns’s film was intended to create links between past and present.110 Burns used The Civil War as a thematic structure for presenting narratives about the nature of equality in the United States: the initial reason we fought—to extend to all men the promise that all men are created equal [animated the pursuit of the film]. The history of our country is one of tension between growth and civil rights. The Civil War murdered hundreds of thousands of people to extend [equality] to black men, and now we’ve extended it to women, and to black women, and immigrants, and now we’re struggling with the handicapped and the homosexuals and how we try to expand and invigorate the American democracy.111 That Burns chose film as the medium to relay this message, rather than the written word, was not as he sees it an impediment to the presentation of history. Burns rejects the view that entertainment history is not history—it is “‘selective, impressionistic, to be sure, but a legitimate form of historic expression.’”112 Indeed, Burns argues that entertainment history is superior to academic history because “‘[t]oo much of good factual history seems untrue because it doesn’t resonate.’”113 Thus, entertainment history is important because it resonates—the selectivity and bias inherent in the medium, provided they do not obscure the ultimate message, are less important than the ability to influence. The ability to resonate must be preserved. Despite the general praise that historians have reserved for The Civil War, and it has certainly been better received than most examples of entertainment history, it too has been subject to widespread criticism. The main objection to the film is that it winnows down the possible narratives about the causes, execution, and aftermath of the Civil War into only one or two basic “explanation” narratives.114 Many have excoriated Burns for his treatment, or lack thereof, of See id. Matthew Melton, Ken Burns’s Civil War: Epic Narrative and Public Moral Argument, 1 SYNC: REGENT J. FILM & VIDEO 28, 32 (1993) (quoting Interview by Charlie McDowell with Ken Burns). 112 Woodward, supra note 108, at 7 (quoting Ken Burns, Speech at the Civil War Institute (June 28, 1991)). 113 Bernard A. Weisberger, The Great Arrogance of the Present Is To Forget the Intelligence of the Past, AM. HERITAGE, Sept./Oct. 1990, at 96, 100 (quoting Interview with Ken Burns). 114 See Paula Rabinowitz, Wreckage Upon Wreckage: History, Documentary and the Ruins of Memory, 32 HIST. & THEORY 119, 132 (1993) (“Ken Burns’s seemingly balanced PBS film, The Civil War (1990), which presents the words and images of other times, other places, to show the horrors of war, want us to remember, which . . . is . . . a political act.”); see also Catherine Clinton, Noble Women As Well, in KEN BURNS’S THE CIVIL WAR, supra note 30, at 61, 65 (pointing out historical errors in the film); Toplin, supra note 30, at 21 (“[D]ocumentaries do not really present 111 110 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 489 racial issues,115 or women’s issues,116 while others are more blunt, merely declaring that The Civil War is not “good history.”117 IV. If The Civil War, for all its efforts, still does not meet the lofty standards of “accurate” history that Gottschalk and his professional cohorts demand, then what do historians truly want? Looking more closely at historians’ objections to these films, and others, provides some final guidance on the rules that entertainment history should follow to be considered at least passably historically legitimate. Historians do not believe that any of the above films are as good as academic history. Yet, their rejection of the above films reveals a hierarchy of disgust. At the bottom (or top depending on point of view) is The Birth of a Nation. Derided for its “myths, falsehoods, and fantasies,” Griffith’s vision has been virulently criticized for its execrable agenda and, more importantly, for its propagandistic tendencies.118 The employ of a false past in pursuit of a modern agenda (especially when that agenda is so abhorrent) is, to historians, an unforgivable transgression. “The film’s depiction of antebellum, Civil War and Reconstruction Southern life is crude psychologism, racist and reductive, masquerading as history . . . .”119 This masquerade extends beyond the mere fictionalization of historical figures or inaccuracies in dates and information. It is the creation of a fantastical past (idyllic race relations in the South), a narrative of loss and betrayal (by corrupt blacks, mulattos, and northern whites), and a call to action and reinforcement of racist institutions120 that reveals how vehemently these uses of history must be prohibited. To make matters worse, commentators have argued that The Birth of a Nation’s horrific nonhistory was effective. As some have noted, “the most direct historical effect the film had: the resurgence of the Klan in the late 1910s and 1920s was directly encouraged, if not actually inspired, by the film.”121 Next in facing historians’ ire is Roots. Again, historians may feel less inclined to attack Roots because they agree, on the whole, with its message. Thus, the likely reason the movie has been subject to a lesser attack for its historical a non-partisan rendering of history.”). 115 See Eric Foner, Ken Burns and the Romance of Reunion, in KEN BURNS’S THE CIVIL WAR, supra note 30, at 101, 105; Litwack, supra note 38, at 129. 116 See Clinton, supra note 114, at 67. 117 Gabor S. Boritt, Lincoln and Gettysburg, the Hero and the Heroic Place, in KEN BURNS’S THE CIVIL WAR, supra note 30, at 81, 100 (praising the film in general but nevertheless concluding that by academic standards it does not fulfill requirements of good history); see also Rosenheim, supra note 43, at 219 (“The Civil War [is] an example of the intellectual poverty of historical documentaries on television.”). 118 Litwack, supra note 70, at 140. 119 Gallagher, supra note 71, at 69–70. 120 See supra notes 66–84 and accompanying text. 121 Gallagher, supra note 71, at 76. 490 UTAH LAW REVIEW [2003: 471 fallacies is that its themes are far more palatable to today’s audiences and historians than The Birth of a Nation. Yet, historians’ objections to Roots’ fictionalizations are palpably tamer than for The Birth of a Nation for another reason—despite the fact Roots falsified certain characters, events, and dialogue, it remained true to the historical themes and narratives of slavery—something The Birth of a Nation most certainly did not do. Telling is one commentator’s recognition that Roots “deserve[s] more credit than [it has] received” for accurately portraying history.122 “Although [Haley] did take liberties in fictionalizing characters, the series presented a reasonable survey of the historical issues dealing with slavery . . . .”123 Historians’ reactions to Roots are explained, at least in part then, by the fact that Roots does not engage in mythmaking or propaganda. Thus, as long as a work of cinematic history presents a reasonably accurate historical context, it appears it will escape much of historians’ ire. That said, however, Roots is certainly guilty of presenting fiction as history in the characters and their relationships to one another and to Haley.124 The overall utility of Roots was greatly diminished by the furor over its fictionalization,125 although it is unclear whether the work would ever have had the impact it did had it been presented as fiction from the start. Finally, The Civil War, despite being heavily criticized for its simplifying, empathetic, and hegemonic narrative style, is nevertheless viewed by many historians as, perhaps, the best example of entertainment history.126 In the end, although historians are quick to criticize all three movies for their simplifying narratives, they nevertheless recognize that entertainment history cannot account for all complexities. For example, while criticizing Burns for a “selectivity [that] seems so imbalanced” and a “lack of context [that] produces myopic distortion” in his presentation of the Civil War,127 it is recognized that these critiques are limited: “Sins of omission, however, are not equal to propaganda.”128 It is propaganda that is the real villain, not the inevitable winnowing down of complexity into entertaining narratives or occasional historical inaccuracy. One commentator has been explicit in stating that even historians do not require “scholarly” history and entertainment history be one in the same: “I am not arguing that The Civil War should have adopted a scholarly format. That would have driven viewers off in droves as surely as dry historiographical lectures send 122 John E. O’Connor, History in Images/Images in History: Reflections on the Importance of Film and Television Study for an Understanding of the Past, 93 AM. HIST. REV. 1200, 1203 n.6 (1988). 123 Id. 124 See supra notes 96 and 104 and accompanying text. 125 See Courlander, supra note 95, at 294. 126 Or, the best of the popularly available entertainment histories. See ROSENSTONE, supra note 26, at 7. 127 Clinton, supra note 114, at 65. 128 Id. No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 491 students reeling from college classrooms.”129 As noted earlier, entertainment history resonates in a way that academic history does not, and a large part of this power is derived from simplification. Based on the individual attacks against these three films, it is possible to discern three broad “rules” for avoiding historians’ ire—and more importantly, for maintaining a base level of legitimacy when using history to serve modern argument. First, fiction should not be represented as historical fact. Second, movies must place factual or fictional characters and stories into appropriately accurate historical context. Third, history should not be presented as a single, allencompassing, and uncontradictable narrative of historical truth. Put simply, entertainment history should avoid claiming that its narratives are complete representations of the past. All three films appear in violation of this rule. The Birth of a Nation violates three rules of using history: (i) it represents fiction as fact in history; (ii) it ignores historical context to create a propagandistic historical narrative; and (iii) it offers its story as a single, all-encompassing, uncontradictable narrative of historical truth. Roots, on the other hand, only violates two of the rules: (i) it represents fiction as fact in history; and (ii) it offers its story as a single, all-encompassing, uncontradictable narrative of historical truth. The overarching context of Roots’ history is, according to nearly all historians and to its viewers’ innate conceptions of history, a rich and accurate account of slavery as an institution. That is, Roots’ story, although not universal, is nevertheless thematically supportable. Finally, The Civil War, with its more serious historical bent, violates only the third rule and, even then, only as a matter of degree compared to the other two. A final important point to take away from this rather prolix account of entertainment history is that violation of the three rules set forth above does not, by itself, render a movie illegitimate and censurable. Indeed, one conclusion we can reach is that meeting all three of the above rules is impossible for any film (and perhaps for any historical work at all). As a result, we may conclude that the rules set forth above are to be loosely interpreted and, more important, that some rules are more significant than others. As we have seen, The Birth of the Nation violates rule number two (employing false history), and has been universally condemned and vilified by historians as constituting little more than propaganda. Roots, although criticized by historians for violating rules one (presenting fiction as fact) and three (oversimplifying), has not been as universally criticized precisely because, on a basic level, the simplified narrative it presents is at least historically supported. Finally, The Civil War is generally praised for its attempts to satisfy all three rules while being simultaneously criticized, in the main, for its 129 Gary W. Gallagher, How Familiarity Bred Success: Military Campaigns and Leaders in Ken Burns’s The Civil War, in KEN BURNS’S THE CIVIL WAR, supra note 30, at 35, 58. 492 UTAH LAW REVIEW [2003: 471 oversimplification (rule three). The clearest direction we have from historians that these rules are not to be rigidly applied is their explicit recognition that following these rules to the letter would result in bad movies.130 As previously noted, historians agree that Roots would not have had the impact it did had it been required to present its narrative with historical accuracy and, just as importantly, may not have had the same impact had it been presented as merely a work of fiction.131 “Films that have been truest to the facts . . . have tended to be visually and dramatically inert, better as aids to sleep than to the acquisition of historical consciousness.”132 At the same time, Whether writing history or making historical films, the object is not to replace old lies with new myths, or old omissions or distortions with a new set of heroics and romanticisms . . . . [It] should not simply reinforce what [a society] already know[s] of [its] past . . . . [T]he best history, the best films explore different versions of reality, they deepen sensibilities . . . .”133 Thus, film should not be required to be a perfect reflection of historical accuracy or profundity, but it should at least admit of its own limitations. Given all of this discussion, we can boil down the main objections to entertainment history, or at least the one objection that if met could still preserve its utilitarian purpose, as follows: It is the way entertainment history “tends to compress the past into a closed world by telling a single, linear story with essentially a single interpretation. Such a narrative strategy obviously denies historical alternatives, does away with complexities of motivation or causation, and banishes all subtlety from the world of history.”134 Or, as another critic of The Civil War has put it, historians reject the “hegemonic accounts of [human behavior]” found in most entertainment history and admit of the uncertainty of narrative and context that is inevitably imbued in any historical film.135 Therefore, 130 See supra note 129 and accompanying text. Of course, one possible lesson to take from historians’ reactions to these films is that historical accuracy seems far less important than the “message” the film is intended to convey. Put simply, we wish to allow Roots and The Civil War while preventing The Birth of a Nation. One “solution,” more quixotic perhaps even than Gottschalk’s, would be to have sociologists, political scientists, and philosophers review potential movies and television series to discern whether their message is appropriate and, if so, provide for a lesser standard of historical accuracy. The difficulty of implementing such a “solution,” and the even more obvious difficulty of imposing one set of “desired” results, is problematic, if not patently unconstitutional. Accuracy is one thing, historical accuracy is quite another. 131 See supra notes 100–01 and accompanying text. 132 ROSENSTONE, supra note 26, at 7. 133 Litwack, supra note 38, at 139–40. 134 ROSENSTONE, supra note 26, at 22. 135 Rosenheim, supra note 43, at 232. No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 493 entertainment history, and, as discussed in the next Part, lawyer’s history, should at the least admit of its own limitations and the complexities it ignores. Restorative justice narratives appear to fall into this trap. Claims that restorative justice is an ancient, dominant, culturally neutral, and “pure” criminal justice response are an attempt to use history to show that current paradigms are illegitimate and represent historical usurpations of more appropriate approaches.136 As we shall see in the next Parts, restorative justice history, whether “accurately” presented or not, is a recovery narrative as evidenced by restorative justice jeremiads attempting to undermine current perceptions of legitimate criminal justice approaches.137 Their target is the pervasive view that criminals must be punished because we have always done so, or similar constructions. Although it is important to visit what restorative justice scholars say about their movement and its history, this Article does not set out their work in any comprehensive detail. Admittedly, there is much in the general thrust of their history that is recommended, and to the extent restorative justice history seeks merely to complicate the current perception of appropriate criminal justice responses, it is laudable. In this Article, however, it is important to take a more critical review of the specific evidence and interpretations that restorative justice scholars have employed in support of their history and, more importantly, whether such uses are overly forensic or approaching the mythmaking that some have charged. As this Article articulates, restorative justice history says and asks too much. V. The restorative justice movement is of admittedly recent origin—although the exact date of its founding remains open to some debate.138 As a system of institutional reform, the restorative justice movement is generally dated to 1972 or 1974 with the creation of either the Minnesota Restitution Center or Kitchener, Ontario’s use of victim offender reconciliation (VOR) programs.139 The term “restorative justice” appears even after the institutional processes began, dating See infra Part V. See, e.g., Jennifer J. Llewellyn & Robert Howse, Restorative Justice—A Conceptual Framework, at http://www.lcc.gc.ca/en/themes/sr/rj/howse/howse_main.asp (last updated June 25, 2002) (“Restorative justice is not a ‘new wave’ movement on the fringe of legal practice. Such conceptions of justice have been more or less prominent through most of history.”). 138 See John Braithwaite, A Future Where Punishment Is Marginalized: Realistic or Utopian?, 46 UCLA L. REV. 1727, 1750 (1999) (“Restorative justice is a social movement that really only achieved a sustainable vitality in the mid-1990s.”). 139 Id. 137 136 494 UTAH LAW REVIEW [2003: 471 to 1977 in a widely cited article by Albert Eglash.140 From these isolated and somewhat humble beginnings, restorative justice has grown to become an international phenomenon. From Pennsylvania141 to Papua New Guinea,142 New Jersey143 to Northern Ireland,144 Rhode Island145 to Rwanda,146 restorative justice approaches have been implemented into formal institutions. Most famously, South Africa’s truth commissions were explicitly based on restorative justice principles.147 As restorative justice moves breathlessly forward, however, its proponents feel an irresistible urge to glance back. Discontented with the view that restorative justice is a novel and innovative approach to criminal justice, many scholars have begun to delineate a far older ideological and institutional history than the scant thirty years or so described above. John Braithwaite, considered by many as the world’s foremost scholar on restorative justice, has declared that “[r]estorative justice has been the dominant model of criminal justice throughout most of human history for all of the world’s peoples,”148 and his view is shared by many others.149 These bold assertions are more than just historical claims of equality—they are clear signals of legitimacy and illegitimacy.150 With this historical move 140 According to Van Ness, “[t]he term ‘restorative justice’ was probably coined by Albert Eglash in a 1977 article.” DANIEL W. VAN NESS & KAREN HEETDERKS STRONG, RESTORING JUSTICE 24 (1997) (citing Albert Eglash, Beyond Restitution—Creative Restitution, in RESTITUTION IN CRIMINAL JUSTICE 91, 91 (Joe Hudson & Burt Galaway eds., 1977)). 141 Ronald J. Seyko, Balanced Approach and Restorative Justice Efforts in Allegheny County, Pennsylvania, 81 PRISON J. 187, 187 (2001). 142 Sinclair Dinnen, Restorative Justice in Papua New Guinea, 25 INT’L J. SOC. L. 245, 256–58 (1997). 143 Connie Hassett-Walker, Juvenile Conference Committees Issues in Assessing a Diversionary Court Program, 30 J. CRIM. JUST. 107, 107 (2002). 144 Kieren McEvoy & Harry Mika, Restorative Justice and the Critique of Informalism in Northern Ireland, 42 BRIT. J. CRIMINOLOGY 534, 534–43 (2002). 145 See R. I. Victim Offender Restoration Program, at http://voma.igc.org/rivorp/ (n.d.) 146 Mark A. Drumbl, Sclerosis: Retributive Justice and the Rwandan Genocide, 2 PUNISHMENT & SOC’Y 288, 292 (2000). 147 See ELAZAR BARKAN, THE GUILT OF NATIONS: RESTITUTION AND NEGOTIATING HISTORICAL INJUSTICES 118 (2000); Llewellyn & Howse, supra note 137. 148 John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 CRIME & JUST. 1, 2 (1999). 149 See e.g.,Van NESS & STRONG, supra note 140. 150 See Elmar G.M. Weitekamp, The History of Restorative Justice, in RESTORATIVE JUVENILE JUSTICE: REPAIRING THE HARM OF YOUTH CRIME 75, 75 (Gordon Bazemore & Lode Walgrave eds., 1999) (“The retributive response to crime takes place in a societal context of state power, focuses on the offense, inflicts harm, seeks just desert, and ignores the victim. The rehabilitative response takes place in the societal context of a welfare state, focuses on the offender, provides treatment to him or her, seeks conforming behavior and ignores the victim as well. Conversely, the restorative justice response takes place in the societal context of empowering the state, focuses on losses, repairs the damage inflicted, seeks satisfied parties and views the victim as the central person of the whole process.”). No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 495 scholars are claiming not only that restorative justice approaches have modern utility, but also that they are more traditional than our modern approaches.151 These restorative justice histories are an attempt to show that modern justice is “bad” and that traditional justice, couched in restorative justice principles, is “good.”152 As proponents argue: “Forms of restorative justice, as we could find them in acephalous societies and especially early state societies, seem to be the better answer to the crime problem of today’s societies.”153 Yet, some scholars have indicated that the “history” the restorative justice movement cites is inaccurate.154 Echoing Gottschalk’s claims about entertainment history, these scholars have criticized restorative justice for creating a “mythical” past and have alleged that restorative justice scholars have appropriated history for utilitarian ends.155 If true, it should not be surprising that restorative justice seeks to place itself firmly within our traditions and ideology. In law, perhaps more than in most other fields, scholars inevitably seek to enlist historical evidence in support of modern positions.156 Restorative justice scholars, seeking to effect legal change, have increasingly sought to justify that change by expanding the sources of their legitimacy. In the battle over cognitive legitimacy, history is one more tool in the restorative justice arsenal.157 Forging this history, restorative justice scholars have not been forced to look very far. Indeed, they have implicitly and explicitly “borrowed” from an older scholarship, although itself quite young, on the history of restitution. In the end, one cannot understand the implications of restorative justice history without first familiarizing oneself with the restitution literature that predates it. Restitution is, admittedly, an ancient institution and practice for dealing with criminal justice issues.158 However, as with restorative justice, restitution has only recently been the subject of serious study in the United States. Restitution had been adopted in many foreign countries and was the subject of some study in the nineteenth and early twentieth centuries in various international symposia.159 The study of restitution as a possible additive or replacement for United States criminal justice 151 See Braithwaite, supra note 148, at 2. But see Daly, supra note 14, at 61–64 (criticizing this approach taken by restorative justice proponents). 152 Id. at 59, 63. 153 Weitekamp, supra note 150, at 97. 154 E.g., Daly, supra note 14, at 63. 155 Id. 156 See supra notes 51–62 and accompanying text. 157 See NOVICK, supra note 9, at 3–4 (“A central problem for any new cognitive structure is to legitimize its epistemological foundation. . . . Without some such myth, cognitive structures lack grounding and authority.”). 158 See infra notes 163–66 and accompanying text. 159 See, e.g., Bruce Jacobs, The Concept of Restitution: An Historical Overview, in RESTITUTION IN CRIMINAL JUSTICE, supra note 140, at 45, 49–50 (outlining development of restitutionary policies throughout world during nineteenth and twentieth centuries). 496 UTAH LAW REVIEW [2003: 471 approaches began in the mid-1960s160 and picked up speed through the 1970s. As part of the effort to revive restitutionary institutions in the United States, early advocates began to seek a foundation of support for restitutionary processes in human history.161 The study of restitution was kick-started by Stephen Schafer’s Compensation and Restitution to Victims of Crime, published in 1970. Although foremost a comparative review of restitution-based approaches in countries throughout the world,162 Schafer’s work included an initial foray into explaining restitution’s historical lineage.163 Although largely concerned with the decline of restitution in the West, Schafer’s main thesis is that restitution “for a long period was almost inseparably attached to the institution of punishment.”164 In support of this thesis, Schafer spends most of his time reviewing the use of restitution in the European Middle Ages.165 Schafer argues that prior to this period, evidence of restitution’s use in criminal processes is unclear and anecdotal.166 Despite this uncertainty, he offers a brief history of restitution (and its corollary “composition”) in prestate human justice: The change from vengeful retaliation to composition was part of a natural historical process. As tribes settled down, reaction to injury or loss became less severe. Compensation or composition served to mitigate blood feuds, which, as tribes settled and became more or less stable communities, only caused endless trouble: an injury once committed would start a perpetual vendetta. Composition offered an alternative which was in many ways equally satisfactory to the victim. In Germanic law compensation provided a touch of self-humiliation, which appeased the instinct for revenge felt by the victim.167 Arising out of Schafer’s initial musings, the history of restitution became inextricably linked to the blood feud and was consistently characterized as a solution to the violence of such vengeful institutions.168 See Marvin E. Wolfgang, Victim Compensation in Crimes of Personal Violence, 50 MINN. L. REV. 223, 241 (1965); Comment, Compensation to Victims of Violent Crimes, 61 NW. U. L. REV. 72 passim (1966-67). 161 HERBERT EDELHERTZ, RESTITUTIVE JUSTICE: A GENERAL SURVEY AND ANALYSIS 1–20 (1975). 162 STEPHEN SCHAFER, COMPENSATION AND RESTITUTION TO VICTIMS OF CRIME xi (2d ed., Patterson Smith Publ’g Corp. 1970) (1960). 163 Id. at 3–12. 164 Id. at 3. 165 Id. at 5–7 (reviewing restitution in Germanic, Frankish, and Saxon common law traditions). 166 Id. at 3–4. 167 Id. at 5 (citation omitted). 168 See infra notes 190-91 and accompanying text. 160 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 497 Publication of Herbert Edelhertz’s Restitutive Justice in 1975 was another landmark in the development of restitution’s history. Authored under the authority of the Law and Justice Center, Edelhertz’s work also focused on a comparative review of restitutionary processes around the globe.169 Yet, like Schafer, Edelhertz felt compelled to begin his work with a review of restitution’s origins. Edelhertz explicitly recognized the importance of coupling an analysis of “the potential utility of restitution and compensation programs . . . with the recognition that such programs have long historical (and pre-historical) antecedents.”170 By claiming that restitution as an approach for dealing with crime was “by no means new,” Edelhertz argued that restitution’s place in human history provides a legitimacy that mere “novelty” could never claim.171 Despite Edelhertz’s historical leanings, the thesis of his paper is surprisingly negative: “The novelty of the current idea that restitution programs may have a role in the rehabilitation of offenders fades somewhat in light of historical evidence that protection of offenders and offenders’ social groups, not benefits to victims, was the major objective of such programs in primitive and ancient societies.”172 Thus, with Edelhertz’s work, the history of restitution was burdened with two historical narratives: (i) that it arose to limit the effect of the blood feud;173 and (ii) that it was created to protect offenders and offenders’ clans rather than compensate victims.174 After reviewing a few anecdotal sources from Mosaic Law and the Code of Hammurabi, Edelhertz concludes that “[p]rimitive penal law, then, was largely a law of torts” that “recognized the private and individual nature of the wrong, but sought to redress it through economic means.”175 Edelhertz then proceeds to set out a basic argument why restitution favored offenders and communities and was emphatically not victim-oriented.176 Although based on no empirical evidence, Edelhertz argues that restitution was motivated by three basic factors: 1) the desire to prevent the “socially disintegrating effects” of privately wrought restitution (i.e., through blood feuds or vengeance toward the offender); 2) the desire to strengthen central authority; and 3) the fear by wrongdoers “of vengeance and their willingness to submit to some EDELHERTZ, supra note 161, at 1–20. Id. at 1. 171 Id. 172 Id. (emphasis added). 173 SCHAFER, supra note 162, at 5. 174 EDELHERTZ, supra note 161, at 1. 175 Id. at 4. 176 Id. at 12 (“One of the most interesting misconceptions regarding the history of restitutive justice is that it was a mechanism grounded in a universally-accepted RIGHT of the crime victim to compensation by the offender.”). 170 169 498 UTAH LAW REVIEW [2003: 471 type of communal arbitration rather than to risk their property and often their lives.”177 Ultimately, Edelhertz concludes that prestate societies’ preoccupation with restitution was more easily explained by the fact that it was “more the victim’s behavior that was being called into question than the offender’s.”178 The problem was not crime, but the inability of victims to suppress their desire for vengeance. Edelhertz emphatically concludes: “A closer look at the history of restitutive justice reveals a penalty system far more concerned with the offender than with his victim.”179 Given the lack of historical record, primary or secondary, to justify this view of restitution, it appears that Edelhertz, building on Schafer’s initial work, accepts these connections as part of a received wisdom about the nature of early society and crime. Thus, Schafer and Edelhertz portrayed restitution as an illiberal, hegemonic, and punitive approach to resolving criminal behaviors. Those interested in restitutive justice were not, it can be expected, pleased with these conclusions and sought to correct perceived errors.180 In particular, two Berkeley anthropologists, Laura Nader and Elaine CombsSchilling, offered a direct refutation of Schafer’s and Edelhertz’s earlier claims.181 Nader and Combs-Schilling noted that “the historical perspective is important, if well constructed, to understand how, why, and where restitution has changed over time,”182 but they also “caution[ed] the reader that many of the references people make to restitution in past or contemporary primitive or preliterate societies are just plain wrong or full of misconceptions.”183 In their effort to recast restitution as a liberal and merciful institution, Nader and Combs-Schilling conclude that “[i]t is not retaliation but rather a desire to replace the loss with damages that characterizes preliterates. And still today it is restitution, not social retaliation or retribution, that is widespread.”184 Nader and Combs-Schilling go on to discuss numerous anthropological studies on prestate societies and their use of restitution policies.185 The evidence Id. (internal citations omitted). Id. at 13. 179 Id. at 16. 180 On the heels of Edelhertz’s report, Restitution in Criminal Justice was published. This book explicitly sought to convert restitution history into an approach more closely associated with the egalitarian conceptions of restorative justice (although the movement was not yet known by that moniker) and contained a number of articles seeking to alter the terms of the debate. E.g., Laura Nader & Elaine Combs-Schilling, Restitution in Cross-cultural Perspective, in RESTITUTION IN CRIMINAL JUSTICE, supra note 140, at 27, 27. 181 Id. at 32. 182 Id. at 27. 183 Id. 184 Id. 185 Id. at 28–39. 178 177 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 499 they cite in their article is, it turns out, much the same relied upon by current restorative justice advocates. As a result, their evidence will not be analyzed here but will instead be reviewed below.186 Central to their analysis, however, is the view that restitution is separate from punishment, that it represents different motivations and purposes, and that it is the predominate criminal justice institution in the world today and throughout history.187 In addition, they argue that restitution is inherently victim-oriented for two reasons: (i) prior histories had overstated the power of victims to engage in blood feuds, thereby limiting their ability to collect awards of any kind other than compensation;188 and (ii) the level of required restitution was, more often than not, determined according to the status of and harm caused to the victim.189 According to Nader and CombsSchilling: The nature of restitution in the societies we have examined contradicts the presumed historical universality of [claims that restitution favored offenders by permitting them to buy out of their crimes and to avoid overly-vengeful victims]. In the first place, it is often questionable that the victim’s kin group could impose any other sanction (legitimate or illegitimate), and even if they could impose another sanction (which was most often the resort to force), it is doubtful that the imposition of this sanction (which typically led to the feud) would benefit the victim and his family. Feuds were mutually destructive and thus the resort to restitution greatly benefited the victim and his family as well as the offender and his family and the society at large.190 Although not yet fully a restorative justice approach, Nader and CombsSchilling’s redirection of restitution history to emphasize the status of victims directly motivated the more formal restorative justice movement to come.191 As the 1970s came to a close, the concept of restorative justice was introduced into the criminal justice literature192 and, as the 1980s moved along, a series of articles and monographs were published that continued to both refine See infra Part V.A. Nader & Combs-Schilling, supra note 180, at 27. 188 Id. at 29. 189 Id. at 32. 190 Id. at 33. 191 The clearest indication that the restitution movement had not yet been subsumed by restorative justice is that another article in Restitution in Criminal Justice that deals directly with the history of restitution equated the institution with punishment and with an emphasis on its effects on offenders. See Jacobs, supra note 159, at 47; see also Eglash, supra note 140, at 99 (arguing that restitution should continue to focus on offender and that benefits to victim are mere “gravy”). 192 See supra note 140. 187 186 500 UTAH LAW REVIEW [2003: 471 the theory and demonstrate how it was distinct from traditional restitution.193 One of the main proponents of this new movement was (and is) Daniel Van Ness. Beginning in 1986 with Crime and its Victim, Van Ness has worked tirelessly to refine the theory of restorative justice and, in most of his work, included a history lesson.194 Van Ness’s history, however, is little more than a bare assertion that “restitution has its roots in justice systems which viewed crime as an injury more to the victim than to the government.”195 After reviewing a few examples from various ancient legal codes, Van Ness concludes in one article: “What we see in ancient cultures is a recognition that it was the victim who was injured by crime, and therefore it was the victim who had the right to be compensated.”196 Once again we have a theory of restitution’s history that is “victim-centered” and concludes that victims have the right to be compensated.197 The final piece of the restorative justice puzzle was added in a highly influential article by criminologist Elmar Weitekamp.198 Focusing on the development of restorative justice models in two stages of human civilization, acephalous (prestate cultures) and nonacephalous (early state), Weitekamp argues far more forcefully than previous scholars that “restorative justice has existed since humans began forming communities.”199 In support of his claim that most of human history’s response to crime has been restorative, Weitekamp recasts much of the same evidence and argument as Nader & Combs-Schilling used, but in a specifically restorative justice light.200 The following sections examine restorative justice history as set forth in Weitekamp’s article and, where appropriate, discuss evidence and conclusions offered by other advocates. In so doing, however, this Article looks at restorative justice claims on their own terms. That is, rather than focusing on sources or interpretations restorative justice advocates have not made, these histories are examined according to the sources they cite. This examination is to determine whether these histories violate any of the three rules set forth above. That is, do they represent fiction as historical fact, and do they portray the evidence accurately or inaccurately, simply or with complexity. E.g., JEROLD S. AUERBACH, JUSTICE WITHOUT LAW? (1983); JOHN BRAITHWAITE, CRIME, SHAME AND REINTEGRATION (1989); JUSTICE: THE RESTORATIVE VISION (Mennonite Cent. Comm. ed., 1989); MARK UMBREIT, CRIME AND RECONCILIATION: CREATIVE OPTIONS FOR VICTIMS AND OFFENDERS (1985); DANIEL W. VAN NESS, CRIME AND ITS VICTIM (1986). 194 E.g., VAN NESS, supra note 193, at 63–68 195 Daniel W. Van Ness, Restorative Justice, in CRIMINAL JUSTICE, RESTITUTION, AND RECONCILIATION 7, 7 (Burt Galaway & Joe Hudson eds., 1990). 196 Id. (emphasis added). 197 Id. 198 Weitekamp, supra note 150, at 75. 199 Id. at 81; see also VAN NESS & STRONG, supra note 140, at 7 (“[C]rime was [historically] viewed principally as an offense against the victim and the victim’s family.”). 200 Weitekamp, supra note 150, at 82–83. 193 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY A. Acephalous or Prestate Societies 501 According to Weitekamp, early nonstate societies formed a “kin-based social organization” that emphasized the concept of “collective responsibility.”201 These social bonds “reduced the likelihood of egoistic interests . . . [and] minimized the potential for trouble.”202 Given these structural factors, it is argued, prestate societies sought not to punish deviators but to regain balance and seek “resolution . . . for facilitating a quick return to daily life.”203 These motivations led prestate societies to disfavor “blood revenge” or “retribution” and instead to focus on regaining balance “by doing something . . . for the victim”204 through either “ritual satisfaction” or “restitution.”205 Restitution was, Weitekamp argues, by far the most widely employed criminal justice response.206 Other scholars have been less emphatic in their claims about restitution’s dominance in nonstate societies. Nader and Combs-Schilling, for example, note that “restitution was only one part of a much larger sanctioning system” employed by some cultures207 and, in general, is “one among many sanctions operating in the social-control system of such societies.”208 Whether presenting the strong or mixed claim about restitution’s dominance, there is little doubt that restorative justice scholars have only scratched the surface of the anthropological literature and, in the little that has been proffered, have been highly selective in the examples expressed. Ultimately, however, these accounts reach the same conclusions: (i) that acephalous societies predominantly use restitution to govern criminal conduct;209 (ii) restitution is inherently victimoriented;210 and (iii) restitution seeks to restore balance and “wholeness” in the affected communities rather than punish deviants.211 As we can see, these elements echo some of the earlier restitution histories, but with important differences. They proclaim a far more universal approach of societies to favor restitution and seek to prove that restitution was concerned with the restoration of balance in communities.212 These conclusions are aggressive statements of historical legitimacy that, as we shall see, are often unsupported by the evidence. Id. at 76. Id. 203 Id. 204 Id. 205 Id. at 77. 206 Id. at 78–79 (“[R]estitution was probably the most common form of resolving a conflict in acephalous societies because it . . . allowed the disputing clans to resume normal relations expeditiously.”). 207 Nader & Combs-Schilling, supra note 180, at 32. 208 Id. at 35. 209 Weitekamp, supra note 150, at 78–79. 210 Van Ness, supra note 195, at 7. 211 VAN NESS & STRONG, supra note 140, at 8. 212 E.g., Weitekamp, supra note 150, at 78–83 (focusing on restoring balance to community). 202 201 502 UTAH LAW REVIEW [2003: 471 1. Preference for Restitution The main restorative justice writings use a few classic works of anthropology in support of the above theses.213 Parsing these works, they present examples214 supportive of their claims and omit or “shade” counterexamples. For example, restorative justice scholars seem intent on minimizing the role that punitive processes, such as the “blood feud,” played in ancient cultures.215 One of the main areas of anthropological and restorative justice focus has been Eskimo criminal justice institutions. Restorative justice scholars claim that, among the Eskimo, the blood feud “was used only rarely”216 or, depending on economic conditions, not at all in some tribes.217 Largely based on E. Adamson Hoebel’s famous work, The Law of Primitive Man,218 it makes sense to go to the source to see what it says. As it turns out, the restorative justice conclusion is either grossly overstated or flatly contradicted by Hoebel’s conclusions. Hoebel, after reviewing dozens of examples where Eskimo clans imposed, authorized, or carried out revenge killings for various offenses, concludes that the Eskimo’s “inchoate” legal system “permits—indeed, encourages” retaliatory killings.219 Hoebel goes on to describe application of death penalties,220 either individually or communally meted out, for such offenses as sexual offenses,221 homicide,222 excessive lying,223 and insults.224 After setting forth these examples, Hoebel is willing to admit that “[h]omicidal dispute, though prevalent, is made less frequent” by other processes such as restitution.225 However, his conclusions do not support the restorative justice argument that revenge killings were “used only rarely.”226 Although restorative justice scholars may be correct that some Eskimo clans employed the feud less frequently than others, there is little E.g., ELIZABETH COLSON, THE PLATEAU TONGA OF NORTHERN RHODESIA (1962); E.E. EVANS-PRITCHARD, THE NUER (1940); ERNEST GELLNER, SAINTS OF THE ATLAS (1969); AUSTIN KENNETT, BEDOUIN JUSTICE: LAW AND CUSTOMS AMONG THE EGYPTIAN BEDOUIN (2d ed. 1968); R.F. Barton, Procedure Among the Ifugao, in LAW AND WARFARE 161 (Paul Bohannan ed., 1967) [hereinafter LAW AND WARFARE]. 214 Weitekamp, supra note 150, at 82 (referring to his evidence as “few examples”). 215 E.g., id. at 76–77. 216 Id. at 76. 217 Id. at 77. 218 E. ADAMSON HOEBEL, THE LAW OF PRIMITIVE MAN (1961). 219 Id. at 99. 220 Id. 221 Id. at 83–87. 222 Id. at 87–89. 223 Id. at 90. 224 Id. at 87. 225 Id. 226 See Weitekamp, supra note 150, at 76. 213 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 503 evidence in Hoebel that the blood feud was a marginalized system for punishing deviants. Another prestate society that Weitekamp and Nader and Combs-Schilling cite as an example of a restitution-favoring society is the Yurok Indians of Northern California.227 These tribes, made famous by A.L. Kroeber’s early twentieth century studies,228 are noted for their systematic setting of compensation for injuries caused by one tribe member against another.229 The Yurok are also cited by restorative justice scholars as a prime example of a society that views restitution as a victim-oriented response. Their chief evidence is Kroeber’s claim that the Yurok system of compensation varied according to the status of the injured victim, not the status of the offender.230 Leaving aside the restorative justice claim that the Yurok approach was victim-centered (certainly a plausible interpretation), what is ignored are Kroeber’s and later Hoebel’s conclusions that the Yurok punished offenders through “imposition and collection of damages, or by the infliction of bodily injury—even death.”231 More pointedly, for the Yurok: “In the last analysis, violence to the body is the legal force.”232 The threat of force is most evident in cases of default, where “the defendant normally became the plaintiff’s debtor slave; otherwise, his execution by the plaintiff and his kin was warranted.”233 Again, the fact unpaid victims were authorized by the tribe to execute the offender or place him in slavery is an indication that the Yurok’s approach favored victims, but it does not support the claim that their responses were overwhelmingly restitution-based. Despite anthropologists’ detailing of the savagery of most ancient cultures’ criminal justice responses, admittedly curtailed in some cases by the option of compensation, restorative justice scholars treat violence as nothing more than an ancillary or idle threat.234 Restorative justice scholars do agree that “[o]ne of the main reasons for the underlying pressure to come to an agreement . . . was the implicit threat of a feud should no settlement be reached.”235 However, this threat, though implicit, was “used only rarely”236 and restitution was successful in See Nader & Combs-Schilling, supra note 180, at 31; Weitekamp, supra note 150, at 80. E.g., A.L. KROEBER, HANDBOOK OF THE INDIANS OF CALIFORNIA (1953). 229 Nader & Combs-Schilling, supra note 180, at 31 (“[I]t was well understood that ‘every possession and privilege, and every injury and offense’ could ‘be exactly valued in terms of property’; and that ‘every invasion of privilege and property must be exactly compensated.’” (internal citations omitted)). 230 Id. (“[I]t was the harm done to the victim plus the status of the victim that served to determine the amount of compensation in any given case.”). 231 HOEBEL, supra note 218, at 52 (citation omitted). 232 Id. 233 Id. at 53. 234 See Nader & Combs-Schilling, supra note 180, at 28–29. 235 Weitekamp, supra note 150, at 79. 236 Id. at 76. 228 227 504 UTAH LAW REVIEW [2003: 471 avoiding “the devastating effects of the blood feud.”237 Ultimately, restorative justice history is intent on proving that “‘[p]rivate justice’ was not necessarily private and did not necessarily involve vengeance. ‘Private’ settlements were not necessarily more punitive, less restrained, or less enlightened” than modern criminal justice responses.238 It appears to be a central point of the restorative justice approach that prestate societies were, somehow, less revenge-seeking, less punitive, and more enlightened than we moderns.239 However, despite restorative justice claims that scholars have deliberately or unconsciously promoted narratives of violence in prestate societies240 the evidence in the anthropological literature is clear that, at the very least, violence lurked behind other criminal justice responses.241 For example, implicit in the claim that restitution helped to prevent blood feuds is the obvious corollary that where compensation failed, violence ensued. According to anthropologists, this result occurred with frightening regularity. According to Hoebel and Roy Franklin Barton, among certain cultures where mediation breaks down over the proper payment of compensation by the offender, either because no proper amount is set or the offender defaults, the victim and his family may “slay the culprit.”242 Hoebel and Barton do not, as restorative justice scholars claim, declare that such results were rare; rather, they declare that seldom did such killing touch off further revenge murders.243 Another important point, overlooked or ignored by restorative justice scholars, is that prestate cultures’ reluctance to engage in revenge killings was often geographically bounded. Hoebel is quick to point out that reticence in blood feuds was only exercised in the “home district.”244 Once outside of the close-knit community, the normal response to crime was to slay the perpetrator or, as Hoebel eloquently put it, “Heads are usually taken.”245 Ultimately, prestate societies Id. at 85. HOWARD ZEHR, CHANGING LENSES: A NEW FOCUS FOR CRIME AND JUSTICE 98 (1990). 239 But see James Q. Whitman, At the Origins of Law and the State: Supervision of Violence, Mutilation of Bodies, or Setting of Prices?, 71 CHI.-KENT L. REV. 41, 46 (1995) (“[P]re-modern law very frequently displays a great concern with the mutilation of bodies, and more especially a tendency to penalize through mutilation.”). 240 E.g., HERMAN BIANCHI, JUSTICE AS SANCTUARY: TOWARD A NEW SYSTEM OF CRIME CONTROL 10 (1994) (arguing that scholars ignore evidence of restorative justice “and seek passionately for vestiges of a punitive model in history”); ZEHR, supra note 238, at 106 (arguing that scholars have deliberately portrayed ancient justice “as vengeful and barbaric, in contrast to the more rational and humane approach of modern justice”). 241 E.g., HOEBEL, supra note 218, at 52. 242 ROY FRANKLIN BARTON, HALF WAY SUN 115 (1930); HOEBEL, supra note 218, at 121. 243 HOEBEL, supra note 218, at 121 (“Public opinion will uphold, and the kin of the slain are not very likely to retaliate . . . but not infrequently they do, and it is here that Ifugao law breaks down. Feud frequently results, and the festering wound may be a social drain for generations until a marriage heals the breach and halts the killing and counterkilling.”). 244 Id. 245 Id. at 122. 238 237 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 505 certainly engaged in practices that seem restorative in nature, if we assume that restitution is restorative, but the prevalence of these responses within a range of more violent, bloody, illiberal, and dangerous practices is seldom made explicit. In the end, restorative justice scholars conclude that “primitive and acephalous societies reflect the wide extent of restorative justice in some form, and indicate that ‘punishment’—in today’s sense—was the exception rather than the norm.”246 Some scholars go so far as to chide modern criminal justice theorists for failing to recognize that these cultures represent a better approach: “‘It is perhaps worth noting that our barbarian ancestors were wiser and more just than we are today, for they adopted the theory of restitution to the injured, whereas we have abandoned this practice, to the detriment of all concerned.’”247 This last claim, that restitution was a more liberal, enlightened, and merciful response to crime, overlooks the devastating ability of societies to impose hierarchical penalties on their members (favoring classes and clans) and the barbaric consequences of an offender’s inability to pay (made worse by the regularity with which societies set restitution rates far above the actual harm) including debtslavery for the offender and his family or, perhaps, even death. As we have seen, the anthropological literature clearly supports the claim that revenge killings and community-imposed executions for various offenses were tremendously important.248 Although restorative justice scholars may be correct that restitutionary processes existed, it seems an overt form of advocacy to downplay the existence and importance of more retributive and punitive processes.249 Admittedly, Nader and Combs-Schilling do avoid the excesses of some restorative justice histories, noting: “Restitution is but one remedy among many remedies in a society. The same society that uses restitution as a strategy may also use retaliation (such as restrained killings), raids, property seizures, and fines.”250 This conclusion seems to go as far as the evidence will allow. 2. Victim-centered Central to restorative justice claims is the interpretation that restitution is a process intended to benefit victims. So confident are these advocates that restitution is about the victim that they deny a “need for either supra-familial authority or state control” for administering criminal justice.251 Restitution “is a means of providing for the needs of the victim. . . . [T]here is a recognition that Weitekamp, supra note 150, at 82. Id. at 82–83 (quoting HARRY ELMER BARNES & NEGLEY K. TEETERS, NEW HORIZONS IN CRIMINOLOGY 401 (3d ed. 1959)). 248 See supra notes 219–26 and accompanying text. 249 E.g., Weitekamp, supra note 150, at 76 (“Blood revenge normally applied only in cases of homicide . . . .”). 250 Nader & Combs-Schilling, supra note 180, at 36. 251 Weitekamp, supra note 150, at 80. 247 246 506 UTAH LAW REVIEW [2003: 471 the offense against the victim needs in some way to be righted if the society is going to function effectively . . . .”252 As restorative justice advocates see it, restitution is a clear recognition in ancient cultures that victims are the injured parties in crime and that they have a right to be compensated.253 Almost as soon as these claims are made, however, they are contradicted by competing visions of what restitution and restorative justice were “intended” to accomplish for these societies. According to the same authors that claim restitution was a victim-centered response, restitution was also valuable because it allowed for “a compromise that satisfied both parties.”254 At other times, restitution was valuable because it restored balance within the community by curbing the victim’s desire for revenge.255 In support of these various, and not necessarily incoherent, explanations for restitution’s purpose, scholars have again turned to a few examples from anthropology. In support of the “victim as center” approach, Weitekamp, for example, cites two pieces of evidence. First, he details the Ifugao of the Philippines’ use, as told by Barton, of a “cooling off period” to allow the offender and victim to negotiate a monetary settlement for the offense.256 According to Barton’s account, in cases of homicide, the offending Ifugao “fled to the household of a sacred leader who provided sanctuary.”257 Sanctuary provided time for the parties to cool off and allowed time for each to seek a compensatory solution.258 In some societies, these peacekeeping processes were sufficiently entrenched to allow for institutionalized settlement proceedings and actors. For example, the Ifugao employed a designated mediator, or monkalun,259 to negotiate a settlement between the offender’s and victim’s clans.260 A monkalun “is not a judge; for he makes no judgement. He is not an arbitrator; for he hands down no decrees. He is merely a forceful gobetween—an admonishing mediator of limited authority but of unusually persuasive effectiveness.”261 The monkalun shuttles between the parties, seeking peaceful economic solutions to the offensive conduct.262 Restorative justice scholars cite this process as an example of the victimcenteredness of restitution because it is the victim (through his family) that negotiates the appropriate compensation. It is also noted that, in these processes, the ultimate penalty is determined by “the nature of the offense and the victim’s 252 253 Nader & Combs-Schilling, supra note 180, at 34. Van Ness, supra note 195, at 7. 254 Weitekamp, supra note 150, at 79. 255 Id. at 79–81. 256 Id. at 79. 257 Id. 258 See id. 259 Id. 260 See id. at 80. 261 Id. at 79–80 (citation omitted). 262 See id. No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 507 relative status—not the offender’s economic status.”263 The use of the victim as the “scale” for determining the proper amount of restitution is the second element that militates in favor of interpreting these processes as victim-oriented. Of course, there is something obviously victim-oriented about these responses, since the victim receives remuneration. Yet, restorative justice scholars’ own arguments seriously undercut the view that restitution was concerned mainly with victims rather than with defendants or the larger community. First, restitution is a substitute for a victim’s initial desire for revenge killing.264 The affected community, fearing ever-escalating blood feuds injurious to all, set up compensation to force victims to accept economic solutions that were likely not their first choice. Second, and more important, is the very evidence we have of the Yurok’s and Ifugao’s extraordinary systems of compensation. Communities, whether through hierarchical or customary practices, by setting the appropriate levels of compensation for injuries, took away from victims a central right in any system that favors victims over all else—the right to choose their own remedy.265 Again, it is certainly a plausible argument that the additions to and subtractions from these preset amounts to account for the status of victims or the extent of injuries is a bow to victims, but it appears to elevate the community above the individual victim as the true party in interest in seeing these disputes resolved. As a result, it appears that restitution is chiefly beneficial to communities rather than to individual victims. Indeed, even in cases where revenge killing was allowed, there are examples of communities taking responsibility for such executions and forcing victims to first seek community approval for pursued remedies.266 Hoebel relates a story of community execution of a multiple murderer among the Greenland Eskimo.267 In this example, the executioner first seeks community approval for the killing so that no further revenge killing may be taken against him or his family: The important element is that the executioner, who undertakes the slaying, seeks and obtains, in advance, community approval for his act of riddance. When such approval is obtained no blood revenge may be taken on the executioner, for his act is not murder. It is the execution of a public sentence in the name of the people, and the responsibility is theirs.268 263 264 Id. at 80 (citations omitted). Id. at 78–79. 265 See id. at 79. 266 E.g., HOEBEL, supra note 218, at 89. 267 Id. 268 Id. 508 UTAH LAW REVIEW [2003: 471 Thus, although not an indication of restitution’s focus, the fact that communities engaged in meting out justice against deviants supports the view that most of these justice processes were community-centered rather than victim-centered. As to restorative justice’s second claim, that restitution is victim-centered because it focuses on the victim for determining the appropriate level of punishment, there is again evidence that this claim misstates the sources. According to Weitekamp: “Typically the determination of damages involved the nature of the offense, the victim’s relative class position, the solidarity and behavior of the kinship groups involved, the personal temperaments and reputations of the victim and offender, and the geographical position of the two clans.”269 As a matter of interpretation, any system that allows wealthy defendants to pay off others for their crimes, and avoid any further punishment, seems to be chiefly about the defendants. Of more interest, however, is the fact that the sources restorative justice scholars cite for their claims appear to contradict them. Contrast Weitekamp’s language, quoted above, with its original source, Hoebel, from which it has been adapted: In the determination of damages five factors are critical: (1) the nature of the offense; (2) the relative class positions of the litigants; (3) the solidarity and behavior of the two kinship groups involved in the dispute; (4) the personal tempers and reputations of the two principals; (5) the geographical position of the two kin groups.270 Note Weitekamp’s attempt to claim that determination of damages in the Ifugao process is more interested in the victim than the defendant. However, Hoebel makes clear that what matters is the status of the defendant, despite his own characterization in (2) that it is the class positions of the litigants that matters.271 Other restorative justice advocates have made similar claims that it is the victim’s status that matters, but Hoebel’s additive descriptions clearly indicate that the offender’s status is most important.272 Weitekamp, supra note 150, at 80. HOEBEL, supra note 218, at 116. It is important to keep in mind that I am making no claim of misappropriation. Weitekamp has adequately cited Hoebel as a source throughout this section of his paper and it is clear that this is where the information he paraphrases is from. 271 Id. at 117. Hoebel explains: There are at least three grades of penalties: one each for the [social status groups of] kadangyang, tokum, and nawatwat classes. When both litigants are of the same class the customary penalty is easily arrived at. It is when they are of different classes that the lines are not so clear. In any event, the defendant will most likely have to pay over the sum that is characteristically linked to his class status . . . . Id. (emphasis added). 272 Id. 270 269 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 509 Nader and Combs-Schilling offer an interesting example of the victimcentered approach to restitution. First, they note that under Yurok law, “it was the harm done to the victim plus the status of the victim that served to determine the amount of compensation in any given case.”273 As evidence, they cite another anthropologist’s review of the Yurok compensation scheme: “For killing a man of social standing the indemnity was fifteen strings of dentalium, with perhaps red obsidian, and a woodpecker scalp headband, besides handing over a daughter. A common man was worth only ten strings of dentalium . . . .”274 Handing over a daughter does not seem very merciful, restorative, or equitable, but we will leave that aside. At first glance, this system is only marginally “about” victims as victims and seems far more concerned with hierarchy and status as the main determinants of compensation—but in some sense it may be considered victimoriented because victims are the determinant for the penalty (even if their status as victim is ancillary).275 Based on these interpretations and sources, it seems at best an overbroad generalization, or at worst an overly aggressive and propagandistic claim, to say that these were victim-oriented processes to the exclusion of community and/or defendants. It is clear that broad generalizations about the motivations behind these processes are inappropriate given the paucity of evidence cited. That they have benefits to victims over and above that of state-controlled systems may be plausible, but that is far different from saying that restitution is so victim-centered that community and defendant are written out of the picture. 3. Restoring Balance A final claim is that acephalous societies’ criminal justice processes are restorative because they institutionalize conceptions of balance and restoration of harms.276 Leaving aside the cognitive difficulty of this argument’s association with other claims about victim-centered restorative justice processes, this claim seems the closest to being supported by the cited evidence. Restitution, as an attempt to avoid the community-wide problems associated with unregulated Nader & Combs-Schilling, supra note 180, at 31. Id. (citing Robert Redfield, Primitive Law, in LAW AND WARFARE, supra note 213, at 3, 9). 275 As further support for claims of restitution’s victim-centered approach, Nader and CombsSchilling also cite an interesting passage from Pospisil’s study of the Kapauku Indians: “The amount of indemnity varies according to the damage done to the other party. It seldom varies with the status of the plaintiff. A rich defendant, however, may be charged a higher indemnity than an objective estimate of the damage would suggest.” Id. at 32 (citing Leopold Pospisil, The Attributes of Law, in LAW AND WARFARE, supra note 213, at 25, 39). Citation to this passage seems odd indeed when it clearly supports the view that a rich defendant (offender) pays more—the status of the defendant determines the penalty. It appears that the victim is the beneficiary of the differentiation, but, based on Nader and Combs-Schilling’s prior claims that the status of the victim drives the law, id. at 31–32, this passage clearly does not support that thesis. 276 See Weitekamp, supra note 150, at 79. 274 273 510 UTAH LAW REVIEW [2003: 471 violence, is clearly an attempt to benefit the community over the individual claims of victims, and supposed deserts for offenders. Where these claims go too far, however, is in attempting to claim that these approaches were predominant over or completely displaced community-based retributivist or punitive approaches. Earlier discussions in this Part revealed the prevalence of community-meted punishments against societal deviants. The fact that Eskimo cultures banished, mutilated, or executed deviants for conduct such as “chronic lying” or “sorcery” reveals that they were actively engaged in processes that were punitive in nature and that, in some instances, may be classified as victimless crimes.277 According to Hoebel, such crimes were “an offense against the group punishable by death.”278 The group was the victim in many cases and, in these instances, meted out deadly punishments against deviants. Interestingly, Weitekamp’s own description of restitution’s purposes reveals its punitive aspects: The restitution process in acephalous societies constituted six purposes and functions: (1) to prevent further, more serious, conflicts, particularly to avoid a feud; (2) to rehabilitate the offender back into society as quickly as possible and to avoid a negative stigma; (3) to provide for the victim’s needs; (4) to restate the values of the society by addressing the needs of both the victim and the offender, thus indicating that the society desired some type of justice for all its members; (5) to socialize the members about its norms and values; and (6) to provide regulation as well as deterrence for its members. These functions clearly indicate that restitution as a form of sanction had multiple purposes in these societies and that these elements are clearly restorative justiceoriented.279 Deterrence is a recognized factor in restitution and that, coupled with the threat and actuality of violence, is a strong argument for recognizing community involvement in meting out punitive sanctions. Thus, even where restitution may have predominated, it is clear that it contained important elements that were not restorative in nature. B. Early-State Societies Moving from nonstate to early-state societies presents few differences for restorative justice history. There is substantially more “evidence” of the system of criminal justice, and there are more scholars who have sought to interpret 277 278 HOEBEL, supra note 218, at 90. Id. 279 Weitekamp, supra note 150, at 79. No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 511 evidence from this period.280 Despite these differences, the scholarship continues the same themes found in the acephalous period.281 As before, the scholars overwhelmingly conclude that early-state society responses were restorative in nature.282 In so doing they stress three main areas of evidence that support this conclusion: (i) early state societies’ legal codes demonstrate a preference for restitution;283 (ii) restitution is inherently victim-oriented;284 and (iii) restitution seeks to restore balance and “wholeness” in the affected communities.285 1. Preference for Restitution In support of these conclusions restorative justice scholars turn to the numerous written legal codes of early-state societies. Among the earliest of these are the legal codes of ancient Mesopotamia. Focusing on the more famous codes286 of Ur-Nammu, Lipit-Ishtar, Eshunna, and most famously of Hammurabi, restorative justice scholars claim restitution was used even for violent offenses.287 These scholars cite little to no support, either primary text or secondary sources, to buttress their claims, merely concluding that the codes “provided forms of restitution and elements of restorative justice for the parties involved in a dispute,”288 or “required restitution even in the case of violent offenses.”289 Restorative justice scholars have not just looked to ancient Mesopotamia in support of their claim that “[t]he early legal systems forming the foundation of Western law emphasized the need for offenders and their families to settle with victims and their families.”290 In particular, scholars have noted that the Twelve Tables of Roman law include provisions that require “thieves to pay double restitution unless the property was found in their houses; in that case, they paid triple damages; for resisting the search of their houses, they paid quadruple 280 Among the works that lay claim to this period are: JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 3–27 (2002) and Weitekamp, supra note 150, at 83–89. 281 See Daly, supra note 14, at 61 (noting restorative nature of justice in precolonial New Zealand, in Tonga, Fiji, and Samoa, and in pre-Norman Ireland). 282 VAN NESS & STRONG, supra note 140, at 9 (explaining that “purpose of the justice process was . . . to restore a community that had been sundered by crime”). 283 See Weitekamp, supra note 150, at 83. 284 Van Ness, supra note 195, at 7 (noting that restitution systems view crime as injury to victim more than to government). 285 See VAN NESS & STRONG, supra note 140, at 8 (“Ancient Hebrew justice . . . aimed to restore wholeness.”). 286 Among those early Mesopotamian codes not discussed is Uru-Inimgina’s (2400 B.C.). See RUSS VERSTEEG, LAW IN THE ANCIENT WORLD 7 (2002). 287 VAN NESS & STRONG, supra note 140, at 8. But see Weitekamp, supra note 150, at 83 (“The Code of Hammurabi is the only source in the historical literature on restitution where the concept of restitution is restricted to property crimes.”). 288 Id. 289 VAN NESS & STRONG, supra note 140, at 8. 290 Id. at 7. 512 UTAH LAW REVIEW [2003: 471 restitution,”291 and include restitution as an explicit alternative to physical punishments: “If a person has maimed another’s limb, let there be retaliation in kind, unless he makes agreement for composition with him.”292 Another oft-cited piece of evidence in support of the restorative justice claim is ancient Hebrew law.293 Again, scholars cite only one piece of evidence: [A] case of two men involved in a fight that resulted in non-fatal injuries to one of the men. The one who inflicted the injury was required to pay for the employment time the other man lost due to the healing process. Similarly, if an ox was known to be dangerous but the owner did not take proper precautions and the ox gored a person to death, both the ox and its owner were to be killed unless the victim’s family was willing to accept a reparation instead.294 In some cases, restorative justice scholars provide no legal evidence at all, focusing instead on a philological argument about the meaning of shalom.295 Restorative justice scholars are on stronger ground in their focus on postRoman European laws. The Laws of Ethelbert of Kent are noted as an example of promoting restitution in an effort “to avoid the blood feud.”296 To do so, the Laws of Ethelbert explicitly endorsed a community-justice approach, holding that “[e]very crime was a crime against the family or clan, and the offender’s clan was held responsible for crimes committed by its members.”297 As part of this community justice approach, the Laws of Ethelbert created an amazingly intricate system of compensation: three specific fine “types” were created: (i) the wergild for injuries resulting in death; (ii) the bot for nonlethal injuries; and (iii) the wite, a payment to mediators for “overseeing the compensation plan.”298 Some examples of bot payments included “the four front teeth were worth 6 shillings each, the teeth next to them four, the others one; thumbs, thumbnails, forefingers, middle fingers, ringfingers, little fingers, and their respective fingernails were all distinguished and a separate bot was set for each.”299 Early Saxon laws also included intricate calculations for injuries: “a man who knocked out the front tooth of another man had to pay eight shillings; if it Id. at 8. Whitman, supra note 239, at 46 (citing 1 FONTES IURIS ROMANI ANTEJUSTINIANI 53 (Salvatore Riccobono et al. eds., 1968)). 293 Weitekamp, supra note 150, at 84 (noting that early Hebrews “also used restitution and forms of restorative justice for personal crimes”). 294 Id. (citation omitted). 295 VAN NESS & STRONG, supra note 140, at 8. 296 Weitekamp, supra note 150, at 84–85. 297 Id. at 85. 298 Id. 299 Id. (citation omitted). 292 291 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 513 was an eyetooth he had to pay four shillings, and if it was a molar the price was 15 shillings.”300 Weitekamp also notes that “compensation was determined by the rank of the injured person.”301 As with acephalous societies, these few examples, parsed from historical and anthropological literature, are sufficient for restorative justice advocates to conclude that they “demonstrate [that] restitution was an important tool for resolving conflicts”302 and that “restorative justice [is found in the] traditions of justice from the ancient Arab, Greek, and Roman civilizations that accepted a restorative approach even to homicide.”303 As before, however, these few examples are not only a very narrow group on which to conclude about the nature of criminal justice in the preceding four millennia, they also overlook competing reactions to crime that either coexisted with or dominated over restitution. Historians who have studied these texts, while noting their restitutionary leanings, are quick to stress the existence of alternative means for dealing with criminal conduct.304 For example, the code of Ur-Nammu, the oldest of the ancient Mesopotamian law collections (2094-2047 B.C.E.), includes a compensatory scheme for dealing with criminal conduct, including homicide.305 However, the law also includes provisions for imprisonment306 and death for many classes of crimes, including “lawless” behavior.307 In addition, scholars that have examined Ur-Nammu have universally declared that its chief aim is to “protect[] the interests of the upper class citizens”308 as evidenced by the sharply differentiated penalties for upper class and lower-class offenders.309 Similar claims have been made about each of the Mesopotamian codes,310 including the Code of Hammurabi. The Code of Hammurabi, in particular, has been found to embrace talionic criminal justice (“an eye for an eye, and a tooth for a tooth”).311 In some cases, imposition of penalties Id. (citation omitted). Id. 302 Id. However, Weitekamp also notes that compensation was not allowed for certain crimes, “making it necessary for the victim’s family to resort to the blood feud”). Id. 303 BRAITHWAITE, supra note 280, at 3. 304 E.g., VERSTEEG, supra note 286, at 8. 305 Id. 306 Id. at 69 (following talionic rule of “an eye for an eye” by imposing imprisonment as punishment for any individual who unjustly detains another). 307 Id. at 60. (reciting laws that “[i]f a man commits homicide, they shall kill that man” and “[i]f a man acts lawlessly, they shall kill him”). 308 Id. at 8. 309 See id. (“Laws relating to slaves indicate a sharp difference in treatment for them.”). 310 Id. at 11, 61 (noting that codes were intended to protect upper classes, and implying that state played role in prosecuting and punishing criminals). 311 Jacobs, supra note 159, at 45 (Hammurabi embraced “certain rules of retaliation . . . as customary and proper [including rules] under which the wronged party was entitled to exact ‘an eye for an eye, and a tooth for a tooth.’”). 301 300 514 UTAH LAW REVIEW [2003: 471 went beyond the mere talionic to enforce rigid norms of class, gender, and other status distinctions. In one example, Hammurabi mandated public impalement for a wife’s complicity in the murder of her husband.312 Among the Hebrews, scholars have noted “thirty-six capital crimes”313 for “moral abuses,”314 “violations of religious laws,”315 “crimes against parents,”316 homicide, assault, kidnapping, selling into slavery, and treason.317 For these crimes, stoning was the preferred method of execution, but many other forms of execution existed.318 Many other crimes were punished by other penalties and, at times, restitution was among them.319 Turning to Roman law, restorative justice scholars fail to mention that the Twelve Tables also contain death penalties for “theft of crops at night” and “arson,” among other crimes,320 and contain specific penalties, including death, against recidivist criminals.321 Some scholars note that the basis of the Twelve Tables is “revenge.”322 In most cases, the executions were to be undertaken by victims against offenders once authorization for the execution was granted by process.323 Finally, scholars urge against overgeneralizing about the nature of Roman law based on its few written sources, emphasizing that “the Roman magistrate had considerable public punishment powers that are not fully reflected VERSTEEG, supra note 286 at 61 (“The method of execution for this crime was impalement.”). There is also substantial evidence that the state played an active role in the prosecution and meting out of punishment. VerSteeg recounts one case, “the famous Nippur Homicide Trial” where a woman conspired with three others to murder her husband. VerSteeg’s account does not provide that the victim’s family had any role in the prosecution or penalty–and indeed, the state “convicted and sentenced [the woman] to death for her conspiracy along with the three men who actually murdered the husband.” Id. Drapkin, interestingly, details a similar, if not the same, case. This case, “A Sumerian Trial of a Case of Murder,” accused a wife of silent complicity in a plot to murder her husband. In an interesting example of how criminal justice processes from this period were neither wholly retaliatory nor entirely restorative, in this account the wife was acquitted on the testimony of two witnesses (ostensibly members of the victim’s family) that “she had nothing to do with the murder, that she had suffered during her husband’s lifetime, and that her situation was even worse following his death.” ISRAEL DRAPKIN, CRIME AND PUNISHMENT IN THE ANCIENT WORLD 20 (1989). The other three men were executed for their part. Id. 313 DRAPKIN, supra note 312, at 70. 314 Id. (noting that this category mainly included sexual violations). 315 Id. 316 Id. (noting that this category included cursing or bruising of parent). 317 Id. 318 Id. at 70–73 (noting that this category included throwing off of building, burning, hanging, beheading, and strangulation). 319 See generally id. at 70–97 (describing crimes and their respective punishments). 320 VERSTEEG, supra note 286, at 335. 321 Id. at 336. 322 DRAPKIN, supra note 312, at 232. 323 Id. at 233. 312 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 515 in the lawyer’s texts . . . . Much public punishment for low-level crimes was meted out by magistrates, often in summary fashion.”324 Moving on from Roman law, there are numerous other legal documents and codes from other cultures, ignored by restorative justice scholars, that embrace a more punitive approach to crime. Islamic and Indian law, for instance, embraced mutilation, in non-talionic fashion, as a response to crime.325 Additionally, restorative justice advocates, in their zeal to point out the existence of restitutionary elements in criminal codes, often overlook the frequent occurrence that offenders were unable to pay.326 Among Germanic tribes, scholars have stressed that, although restitution was a possible penalty, the penalties were extreme, and few if any offenders were able to pay the amounts required.327 This was true in many societies—the level of payment required for penalties was intended to shame offenders by assuring they could not, except for the wealthy few, make the appropriate payments.328 More importantly, given the difficulty of making the required compensation payments, defendants were often left at the mercy of victims.329 Based on the amounts required to “make good” under these restitutionary codes, one scholar concluded that among the penalties associated with crime, “few penalties [are] more common than that involving the forfeiture of freedom.”330 The prevalence of debt-slavery has led some to conclude that it was used as an alternative to imprisonment.331 In the end, and echoing the same conclusions set forth for the nonstate society discussion, it appears that restorative justice 324 James Lindgren, Why the Ancients May Not Have Needed a System of Criminal Law, 76 B.U. L. REV. 29, 40 (1996) (citation omitted). 325 Whitman, supra note 239, at 47 (“The non-talionic severing of hands and feet, the branding of the face, the cutting of hair, and like mutilation of body parts is also . . . [found in] Islamic[] and . . . ancient Indian law.” (citations omitted)). 326 See Lindgren, supra note 324, at 40 (“[T]he most obvious ancient solution for the inability to pay high fines was slavery or servitude . . . .”). 327 See id. at 42 (“Debt slavery is also found in . . . Germanic cultures, such as the Visigoths. Indeed the Visigothic Code (Spain, ca. A.D. 654) is noteworthy because several extreme punishments are often mandated together or in the alternative.” (citations omitted)). 328 See SCHAFER, supra note 162, at 5 (“In Germanic law compensation provided a touch of self-humiliation, which appeased the instinct for revenge felt by the victim.”). 329 Martha T. Roth, Homicide in the Neo-Assyrian Period, in LANGUAGE, LITERATURE, AND HISTORY: PHILOLOGICAL AND HISTORICAL STUDIES PRESENTED TO ERICA REINER 351, 356 (Francesca Rochberg-Halton ed., 1987) (noting that when offenders were “[u]nable to pay the penalty imposed, the manslayer, his entire household, and his fields [were] seized”); see also Lindgren, supra note 324, at 41 (“‘If an offender were unable to pay the fine of twenty solidi or less, he was to be handed over to the injured party to serve as a debt slave until such time as the sum of the debt was worked out. If, however, the fine involved a larger sum, the guilty man was turned over to the injured party to serve permanently as a debt slave.’” (quoting THE LOMBARD LAWS 28 (Katherine F. Drew trans., 1973))). 330 Lindgren, supra note 324 at 42 (citation omitted). 331 Id. at 43 (“Debt slavery and debt servitude were the chief ancient substitutes for the modern prison.”). 516 UTAH LAW REVIEW [2003: 471 scholars are engaged in a selective history that distorts the prevalence and importance of restitution as a response to criminal misconduct. Further, even in those cases where restitution is employed, it does not appear to be restorative in nature. Not only have restorative justice scholars generally employed overlyforensic methodologies in the sources they present, they have potentially mischaracterized much of their own evidence. The preceding has demonstrated that, contrary to claims of restitution’s near universality and dominance, it appears that its presence was always alongside extraordinarily violent and unpleasant criminal justice responses, including forced labor, debt-slavery, and physical mutilation.332 In addition to these complicating facts, however, lies the problem whether restorative justice scholars’ characterizations of what restitution represents, where it does exist, are correct. 2. Victim-Centered As restorative justice scholars concluded in acephalous societies, so too they argue that restitution in early-state societies represents a “victim-centered” approach.333 As the previous section uncovered, the existence of numerous, draconian punishments—for various religious and state crimes—should limit claims that early-state societies practiced victim-oriented, restorative justice. Yet, as before, there are certainly indications that victims were important parties to criminal processes—at least more important than modern-day approaches: The early legal systems forming the foundation of Western law emphasized the need for offenders and their families to settle with victims and their families. Although crime breached the common welfare so that the community had an interest in—and responsibility for—addressing the wrong and punishing the offender, the offense was not considered primarily a crime against the state, as it is today. Instead, crime was viewed principally as an offense against the victim and victim’s family.334 The ability of victims and their clans, families, and tribes to engage in the negotiations for compensation is an obviously beneficial process for victims. If the absence of the state as the putative victim is all that restorative justice scholars claim about early-state societies, then there would be little argument. But that is See supra notes 324–29 and accompanying text. See ZEHR, supra note 238, at 106. 334 VAN NESS & STRONG, supra note 140, at 7. Of course, this characterization seems to overlook that, in some cases, much of the community was clan in nature; thus, the victim’s family was the community. 333 332 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 517 not restorative justice advocates’ claim. Rather, they claim that restitution in these codes is primarily concerned with making victims whole.335 Other scholars have noted the central role that victims play in these processes while simultaneously providing that standing above these victims and administering the process was the affected community: The basic system of retribution for offenses that would be regarded as crimes in modern legal systems was a dual right that accrued to the victim (or his family): 1) revenge against the culprit (or his family), or 2) the acceptance of a payment by way of ransom in lieu of revenge. This right was a legal right, regulated by the courts who intervened to fix not only the appropriate level of revenge but also, in less serious cases, the appropriate ransom. In the latter case, revenge was only available if the ransom was not duly paid.336 Granted, where restitution failed the victim was placed in an even greater position of power than before. Placing offenders, many that could not pay, at the mercy of victims is one form of a victim-centered system, but hardly one that we could expect modern-day restorative justice scholars to recommend. In some cases, offenders were allowed to give members of their families as compensation to victims rather than sell themselves into debt-slavery.337 At other times, offenders could be summarily executed for failure to pay.338 Another objection to the claim that these systems were about victims is the fact that it appears much of the system was intended to benefit the privileged members of a society. This fact has led one commentator to declare: It is not surprising that death as a penalty for wrongdoing was common in ancient law. What is interesting is how often it was used as an alternative to a nonlethal punishment or for an attack on an upper-class victim when the same act against a lower-class victim was punishable only by a fine.339 In some cases these punishments were about the victim as victims, in others, it was about keeping people in line. Finally, other scholars have surmised that the See id. Raymond Westbrook, Slave and Master in Ancient Near Eastern Law, 70 CHI.-KENT L. REV. 1631, 1638 (1995). 337 Lindgren, supra note 324, at 41 (noting report that “appears to provide for the giving into slavery of the robber’s wife and daughter as compensation for his robbery,” and another case “in which a thief is ordered into slavery, but he convinces the king to let the theft victim take the thief’s sister in slavery instead” (citing Westbrook, supra note 336, at 1644–45)). 338 Lindgren, supra note 324, at 45. 339 Id. at 43. 336 335 518 UTAH LAW REVIEW [2003: 471 regulation of prices in compensation schemes had little to do with the crimes at issue and more to do with state regulation of monies.340 In the end, it seems far too ambitious to characterize these isolated examples of restitutionary processes as inherently victim-oriented. If anything, the evidence appears to support the view that communities and class were what really mattered. 3. Restoring Balance As we have seen, many of the restitutionary structures in early societies were highly punitive in nature, requiring offenders to make payments far above that of the value lost to the victim.341 Backing up these draconian fine structures was the specter of debt-slavery for the offender, his children, and family,342 and, not to be forgotten, the ever-present penalty of death.343 Despite these facts, restorative justice scholars continue to argue that “the goal of the justice process was to make things right by repairing the damage to those parties, whether the damage was physical, financial or relational.”344 Hoebel is often invoked in these claims for his characterization of primitive law: “The job is to clean the case up, to suppress or penalize the illegal behavior and to bring the relations of the disputants back into balance, so that life may resume its normal course.”345 The claim that restitution-based criminal justice processes represent a form of community justice seems far easier to justify than the earlier claim that the victim was of paramount importance. After all, we have numerous examples of state actors setting compensation, administering justice, regulating revenge, and, in other cases, carrying out sentence on behalf of the affected community.346 Community justice “recognized that harm had been done to people, that the people involved had to be central to a resolution, and that reparation of harm was critical.”347 Community justice “also placed a high premium on maintaining relationships, on reconciliation.”348 Indeed, the important and arguably overarching role of community in all of these responses militates against an interpretation that they were innately victimcentered. Community concerns seem far more important than just restoring the Whitman, supra note 239, at 81 (“The concern of the early state as price-setter . . . was not first and foremost the control of violence, but the control of payments in money and weighed metal.”). 341 See supra notes 326 to 331 and accompanying text. 342 See Lindgren, supra note 324, at 41–43. 343 See id. at 45. 344 VAN NESS & STRONG, supra note 140, at 6. 345 HOEBEL, supra note 218, at 279; see also ZEHR, supra note 238, at 99 (“A typical outcome of the justice process was some sort of settlement. Restitution and compensation agreements were commonplace, even for offenses to the person.”). 346 See, e.g., supra notes 295–300 and accompanying text. 347 ZEHR, supra note 238, at 107. 348 Id. 340 No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 519 victim. The setting of prices appears to be a clear example of community interests above that of victims—victims may wish for higher damages, but such damages are not allowed. Indeed, restorative justice scholars have done little to dispel Edelhertz’s initial claim that the entire system of restitution appears to be an attempt by communities to control victims’ lust for revenge. Finally, it has been noted that “[c]ommunity justice could also put a heavy load on victims since the pursuing of cases depended upon their initiative and perhaps even their resources.”349 Despite these burdens, victims were constrained from seeking other avenues of justice. However, as in acephalous societies, claims that these processes were intended, chiefly, to restore balance also appear overbroad. Indeed, the mere existence of the numerous physical punishments, including many barbaric forms of execution, are clear examples that much of what took place in these criminal justice systems was not intended to restore balance but rather to punish deviants and restore order within a community.350 All evidence points to a criminal justice response that is as equally punitive and controlling as it is forgiving and restoring. VI. Lest I fall into a familiar trap, I do not intend to say that the competing evidences, interpretations, and narratives of a retributive, illiberal, and punitive nature are the “proper” interpretations of previous cultures’ approaches to crime. The purpose of Part V is narrower and more pedagogical. By looking at the sources that scholars have used to make arguments that restorative justice was the norm in these societies, it is possible to see how they have manipulated, altered, forensically-culled, and/or misrepresented the very evidence on which they rely. The question that remains is whether this use, or, to some, abuse of history falls closer to The Birth of a Nation, Roots, or The Civil War. As the previous discussion has demonstrated, restorative justice narratives fall somewhere between myth and history. Despite some apparent misrepresentations about the evidence they cite, the main thrust of their history appears to be interpretative. That is, they are seeking to take much of the history of criminal justice and recast it into a restorative mold. In so doing, they have narrowed their historical narratives to fit their particular political agenda—promoting restorative justice over current paradigms. In the final analysis, restorative justice advocates’ use of history violates a number of the rules set forth in Part IV. The selective use of evidence and the manipulation of some sources to create singular narrative supportive of restorative justice claims is certainly unfortunate. However, it is not clear that restorative 349 350 Id. at 106–07. See Whitman, supra note 239, at 46. 520 UTAH LAW REVIEW [2003: 471 justice history rises to Griffithesque levels. Although an attempt to create a simplified and yearned-for epoch of human mercy and equity—to be revived in modern restorative justice institutions—is akin to mythmaking, there is sufficient evidence in the sources cited above to stake a colorable (if not likely) argument that restorative justice institutions were important elements of early human societies. Therefore, we do not have a violation of rule two (placing facts into a false history). However, it does appear that restorative justice scholars are committing Roots-type violations of my rough-and-ready historical canons. Their “general” historical context, although one-sided and simplified, is nevertheless a “reasonable presentation” of history. That said, it is clear that it is less “reasonable” than even Roots’. Given the damage done to Roots’ social influence by the many charges of historical fabrication,351 restorative justice scholars would do well to consider scaling back the nature of their historical claims before controversies over such claims overwhelm the remainder of their arguments (which, if it is not clear from this specific Article, I am convinced are far more accurate). In the end, any historian worth her salt will be severely vexed by many aspects of this Article and, in particular, the restorative justice “historical” literature. Part V set out the overreaching and, at times Griffithesque distortions of context and narrative in pursuit of particular political goals. Yet, there is much more to critique that I choose to leave for another day or for others.352 Admittedly, deeper investigation into these questions may aid the restorative justice movement. For example, it is certainly possible that the economic, cultural, and social barriers to blood feuds353 were such that restitution and other criminal justice processes were created to aid victims in some sort of recovery and not, as intuition and perceived wisdom have long claimed, to mitigate the damage of the 351 E.g., David Chioni Moore, Routes: Alex Haley’s Roots and the Rhetoric of Genealogy, 64 TRANSITION 4, 7 (1994) (noting that for historians, “the basic problem with Haley’s book was that it was . . . too compromised by its author’s own imaginings to be recognized as history”). 352 For example, there is an alarming lack of consistency or investigation into the meaning of oft-used terms. For instance, it is unclear whether blood feuds encompass nonviolent feuding, which can have devastating economic effects. See WILLIAM IAN MILLER, BLOODTAKING AND PEACEMAKING: FEUD, LAW, AND SOCIETY IN SAGA ICELAND 180–81 (1990). In addition, it is not entirely clear who the “victim” is in any given case: some victims may be poor and incapable of exacting revenge while others may be sufficiently powerful to avoid any compensatory schema and carry out appropriate vengeful justice. Finally, the concept of restitution itself appears overly constrained—focusing on economic reparations rather than physical tokens, such as mutilation, debt slavery, or transfer of non-chattel goods (such as daughters) as ways of avoiding violent reprisals. 353 Jenny Wormald, The Blood Feud in Early Modern Scotland, in DISPUTES AND SETTLEMENTS: LAW AND HUMAN RELATIONS IN THE WEST 101, 104 (John Bossy ed., 1983) [hereinafter DISPUTES AND SETTLEMENTS]. No. 1] MYTH IN RESTORATIVE JUSTICE HISTORY 521 blood feuds.354 However, a far deeper analysis of the economic and social factors in given disputes would need to be understood before such conclusions could be reached. Daly, noted earlier for her critique of restorative justice history as “mythmaking,” has noted that such mythical invocations may be needed: “[A]dvocates are trying to move an idea into the political and policy arena, and this may necessitate having to utilize a simple contrast of the good and the bad justice, along with an origin myth of how it all came to be.”355 This origin myth requires an historical move reminiscent of entertainment history’s requirement that it resonate. History in the law, as in Hollywood, must be used for forensic ends—as a result, it must by necessity simplify the complexity of history in support of its intended result. Boiled down, the restorative justice history reviewed above seeks no more than to show that “[i]f the first form of human justice was restorative justice, then advocates can claim a need to recover it from a history of ‘takeover’ by statesponsored retributive justice.”356 Given the forum in which restorative justice advocates find themselves, seeking to convince lawyers and politicians of the wisdom of their approach, it is justified that they impose a rhetorical element into their history.357 Nevertheless, it appears that restorative justice scholars go too far in narrowing their history in that they present their narrative as the singular choice. Like The Birth of a Nation, restorative justice history has moved from history and is now dangerously close to myth. What is needed then is a little more complexity, or at least an admission of their historical narratives’ limitations. The final question that must be asked is whether it is necessary for restorative justice advocates to take such liberties with the history. Just as Daly has led the charge against restorative justice historical excesses, she has also raised the question whether political expediency may nevertheless justify them.358 Since, as I have argued, the restorative justice histories do not rise to the level of “mythmaking” as I have defined it here, another way to ask this question is whether restorative justice scholars require the same “bending” that entertainment 354 See Simon Roberts, The Study of Dispute: Anthropological Perspectives, in DISPUTES AND SETTLEMENTS, supra note 353, at 1, 7–19 (discussing recent research that demonstrates enormous variation in amount and type of violence, fighting, and dispute resolution among small, stateless groups and cultures). 355 Daly, supra note 14, at 63. 356 Id. at 62. 357 Kathleen Daly has again offered a cogent analysis of this need: In the political arena, telling the mythical true story of restorative justice may be an effective means of reforming parts of the justice system. It may inspire legislatures to pass new laws and it may provide openings to experiments with alternative justice forms. All of this can be a good thing. Perhaps, in fact, the politics of selling justice ideas may require people to tell mythical true stories. Id. at 72–73. 358 See id. 522 UTAH LAW REVIEW [2003: 471 history has so aptly employed in its better forms. The propagandistic qualities of The Birth of a Nation, even if they could be excused in the pursuit of any policy, do not seem necessary. As this Symposium and many others have made explicit, restorative justice is an institution that works and, although the exact extent to which its processes should be adopted, there seems little reason to require historical “mythmaking.” Although history matters, it is not the only thing that matters. Empirical evidence of restorative justice’s utility matters as much as, if not more than, restorative justice history—and it seems far less contested. To this end, there is no need for restorative justice to create a “golden age” of past mercy and restoration. The fact that past societies employed criminal justice processes that were simultaneously brutal, illiberal, and class-conscious can be accepted. That these processes may have existed simultaneously with more restorative processes may be accepted—but even these processes, whether victim-oriented, or seeking to restore balance, are nevertheless radically incompatible with our current ideals of individual sovereignty and liberty. There is simply no reason why advocates need to create a false context about how “it used to be.” Instead, they should focus on what should be.