1. Albert Eglash and the Biblical Roots of Restorative Justice:
The Theory and Practices in the U.S.
and Germany in 1950s
Shiro Kashimura
(Kobe University, Japan)
The International Conference and Workshops of
Restorative Justice, Human Rights and Peace Education
March 6, 2012
Chang-Jung Christian University
Tainan, Taiwan

2. “To the best of our knowledge, the
first use of the term ‘restorative
justice’ in the context of criminal
justice was by Albert Eglash in
several 1958 articles in which he
suggested that there are three types
of criminal justice: (1) retributive
justice, based on punishment; (2)
distributive justice, based on
therapuetic treatment ... and (3)
restorative justice, based on
restitution.”
(Van Ness & Strong, 2010: 22)
Albert Eglash
1/29

3. The Problem
The question to be asked in this paper:
(1) Why and in what consideration did Eglash come to conceive
his practice and theory?
(2) What were the distinctive characters of Eglash’s concepts?;
what are similarities and differences between Eglash’s concept and
current RJ concepts? and;
(3) What was the social/penological background of Eglash’s
practice and theory?; what was its distinctively religious
background?
2/29

4. The Implication of Eglash’s Theory and Practice
to the Contemporary RJ (1)
- Historical; The history of RJ in textbooks are incomplete and
sometimes contradictory. Some critics claim that they are
largely myth-making by claiming universal existence of RJ
thoughs and practices in human history. The qusetion in this
paper is; what were the modern origins of RJ practices and
theories? Eglash (1977) is counted as one of the modern
originators of RJ; but it is also knowh that his ideas were found
in a series of his publications in 1957-59 (some of them were
written with different co-authors), so it is almost 20 years before
other major theories (such as Barnett or Christie) that he
“discovered” a restorative idea in his practice/theory.
3/29

5. The Implication of Eglash
to RJ Theories Today (2)
- Theoretical/Practical; The other early thinkers (such as
Barnett or Christie) tended to “abolitionism”- wholesome
abandonment of the penal justice system. Today most RJ
practices are being done within the system, although the major
“spirit” of RJ tends to “changing lenses”(Zehr). Among the
early thinkers only Eglash conceived his RJ as being fit within
the system: it is also only he that practiced his RJ within the
system (as a psychologist for rehabilitating offenders). May his
thoughts still have something to contribute to the current RJ
theory/practice?
4/29

6. The Implication of Eglash
to RJ Theories Today (3)
- Religious; Whereas the major theories of RJ after 1990s are based
on, or significantly influenced by, a new reading of the Bible (as
represented by Zehr and others), Eglash also presented his thoughs as
originated, or at least significantly inspired by, the text of the Bible
as interpreted by Schrey et al 1955. For Asian countries where
Christianity (both as a belief and a group) remains rather weaker or
accomodated by more traditional religios elements, the question of
how far the RJ concept are related to Christianity is specially worth
asking. In addition, Schrey et al 1955 (translated from their German
book by one of the coauthors)was translated into Japanese as early as
1963. The comparative influence of these comparable translations in
Japan and the US is an interesting question worth pursuing in the
future.
5/29

7. The Idea of “Creative Restitution”
In his 1977 article entitled “Beyond Restitution: Creative Restitution,”
Eglash formulated that both “retributive” and “distributive” justices
are alternatives to “restorative justice”. He claimed, somewhat
rhetorically, that
“For thousands of years retributive justice and its technique of
punishment for crime; for decades, distributive justice and its
technique of therapeutic treatment for crime -- these are the
alternatives to restorative justice and its technique of
restitution. “ (Eglash 1977: 91)
6/29

8. The Six Characteristics of “Creative Restitution”
Eglash claims that his “restitutional approach” is distinguished in 6
points from the other two (ibid). The restorative justice:
1 focuses on destructive consequences, its effect on the
victim rather than the behavior itself;
2 gives an important role to the victim and their needs
rather than ignore them;
3 requires an active, constructive role of the offenders
rather than place them in passive role of treatment/
punishment;
7/29

9. The Six Characteristics of “Creative Restitution”
(Continued)
The restorative justice -
4 keeps the offender in the situation where the offense
occurred but reverses his behavior from ones of taking to
giving, rather than remove them from there.
5 gives guidance in view of destroying the fixed pattern of
offensive behavior rather than stop or deter the
misbehavior.
6 accepts both the psychological determinism as to the
causes of the offense and free will as to the creative
remedial action, rather than decide the offense either as
determined or free.
8/29

10. The List of Eglash Papers in 1957-1959
1 (Keve & Eglash 1957) Paul Keve. & Albert Eglash "Payments on a Debt to
Society" N.P.P.A. Newsletter 36: 1-2. (September, 1957).
2 (Eglash 1958a) Albert Eglash "Creative Restitution: A Broader Meaning for an
Old Term" Journal of Criminal Law, Criminology and Police Science 48(6):
619-622. (March-April,1958).
3 (Eglash 1958b) Albert Eglash "Youth Anonymous" (1958) Federal Probation
22:47-49. (June 1958).
4 (Eglash 1958c) Albert Eglash "Offenders' Comments on Creative Restitution"
The Journal of Social Therapy 4(1 & 2): 32-40 (1958).
5 (Eglash 1958d) Albert Eglash "Adults Anonymous: A Mutual Help Program for
Inmates and Ex-Inmates" (1958) Journal of Criminal Law, Criminology and Police
Science 49(3): 237-239. (September - October, 1958).
9/29

11. The List of Eglash Papers in 1957-1959
6 (Eglash 1958e) Albert Eglash "Creative Restitution. Some Suggestions for
Prison Rehabilitation Programs" American Journal of Correction XX:20-34.
(November-December,1958)
7 (Eglash 1959) Albert Eglash "Creative Restitution: Its Roots in Psychiatry,
Religion and Law" British Journal of Delinquency 10: 114-119 (October, 1959)
8 (Eglash & Papanek 1959) Albert Eglash and Ernst Papanek "Creative
restitution: A Correctional Technique and a Theory." (1959) Journal of Individual
Psychology, 15: 226-232, (November, 1959).
Before these papers:
(Eglash 1957) The Gang and the Masculine Protest: Book Review of The Gang -
A Study in Adolescent Behavior -by H.A. Bloch and A. Niederhoffer, Journal of
individual psychology. -- [Vol. 13 (May 1957)
10/29

12. The Four Characteristics of Eglash’s Theory (1/4)
A set of four characteristics are observable in these papers. The idea
was:
1 - based on his discovery that offenders can learn within
the process of creative and guided restitution:
“As a part of restoring a sense of his self-worth, [the
offender] also satisfied another important need, that of
restoring a good relationship with the victim of his
offense. ... Making it possible for the probationer to earn
the request and friendly feeling of the victim of his
offense can be ha healthful experience for him.” (Keve &
Eglash 1957: 2)
11/29

13. The Four Characteristics of Eglash’s Theory (2/4)
2 - The guided/creative restitution achieves its goal
cumulatively through five guided act of creative effort:
(1) the offender takes an active and effortful role,
(2) the effort required is a constructive one,
(3) the constructive effort and its consequences are related to
the offense and its consequences, rather than arbitrary
connected (such as the offense and the punishment),
(4) the relationship between damage and effort is reparative,
rather than punitive,
(5) the reparative effort may go beyond simple repair or tit-
for-tat, it may includes a second mile (i.e. voluntariness).
12/29

14. The Four Characteristics of Eglash’s Theory (3/4)
3 - The guided/creative restitution achieves its goal collective/
mutual help:
“Effectiveness means more than simply delinquency prevention, important
as that is. When the boys at Boys Republic rejected Delinquents
Anonymous in favor of Teen-agers Anonymous, they indicated their
awareness of stigma. To be stigmatized is to be set apart as different from
others. The goal of this program is to enable people whose behavior has set
them apart to rejoin their peers. For these juveniles, participation in the
program is a beginning and a means ; being a teen-ager in the full sense of
the work is the hoped-for goal. “ (Eglash 1958b: 48)
“The act of creative restitution takes place within the framework of certain
interpersonal relationships in that this technique allows the offender the
opportunity for give and take in discussions and mutual helpfulness
between himself and his supervisor, his family and friends, his victim, and
other offenders.” (Eglash and Papanek 1959: 229)
13/29

15. The Four Characteristics of Eglash’s Theory (4/4)
4 - The guided/creative restitution has its roots in psychiatry,
religion, and law, but is an reorganization of the traditional
elements in a new order to allow him “walk a second mile” and
to restore his sense of self-respect:
“In guided or creative restitution, an offender, under appropriate supervision,
is helped to find a way to make amends to those he has hurt, making good the
damage or harm he has caused,and going a second mile whenever possible,
e.g. by going beyond simple repair, by offering restitution despite punishment,
or by helping others like himself. This restitution is guided in the sense that
the offender is compelled to participate in a restitutional programme and is
encouraged to discuss with his family, with correctional authority, with the
victim, and with other offenders, an appropriate form of restitution. It is
creative in the sense that the offender participates in selecting a constructive
act which has socially valuable consequences. Perhaps it is also creative in the
sense of being rehabilitative. (Eglash 1959: 117)
14/29

16. The Four Characteristics of Eglash’s Theory (4/4)
(Continued)
Eglash also wrote:
“Creative or guided restitution refers to a rehabilitation technique in
which an offender, under appropriate supervision, is helped to find
some way to make amends to those he has hurt by his offense, and to
“walk a second mile” by helping other offenders. This technique
may function by itself or as part of a mutual-help program like
Alcoholics Anonymous or its counterparts in penology, Youth
Anonymous and Adults Anonymous.” (Eglash 1958e: 20)
15/29

17. Camparing “Creative Restitution” and
“(Contemporary) Restorative Justice”
Differences:
- Creative restitution is ostensively “offender-centered”,
whereas contemporary RJ is often characterized as “victim-
centered.”
- Creative restitution does focus on “victims” in its own way;
victim may offer a help the offender to restore his sense of
self-respect or social belonging; offender is required to see the
harm to the victim as the consequence of his act and to amend
the harm done.
- Creative restitution also focuses on community in its own
way: as the providers of supports/help to the offender.
16/29

18. Comparing “Creative Restitution” and
“(Contemporary) Restorative Justice”
(Continued)
Commonalities:
- Creative restitution is alternative to punishment and
psychological treatment.
- Voluntary and creative action is required through careful
guidance.
- Group work surrounding the offender is utilized, with
special emphasis on offenders-peers in the case of creative
restitution, in contrast with emphasizing victims-peers in
contemporary RJ.
17/29

19. Discussion I :
the Penological Background of Eglash’s Theory and
Practice
- Movement in favor of the victim’s rights and their needs
and restitution was about to begin in 1950s and developed
in 1960s (e.g.Schafer).
- Technique of group work in rehabilitation was in the
development in 1950s (e.g. Sutherland & Cressey).
- In Denver, a psychologist experimented a group therapy
program following AA model (Cressey, Poremba)
18/29

20. Discussion II :
the Religious Background of Eglash’s Theory and
Practice
Some evidence of religious input to Eglash’s theory and
practice:
- “Walking a second mile” is apparently a quote from the
Bible (Matthew5.38-41).
- Some Names of rabbis are acknowledged in his articles.
- The expression and religious content of “restorative justice”
was adopted or adapted from a theological work (Schrey et al
1955). Though the reference was missing in his 1977 article,
that work seems to have had a significant contribution to, or
at least connection with, his conception of justice as
embodied in creative restitution.
19/29

21. Discussion II :
the Religious Background of Eglash’s Theory and
Practice (Continued)
The quoted part of Schrey et al 1955 is about a new conception of justice
as manifested in the Bible and its relation to the secular/legal justice.
“The aligning of justice and love is something which it is the peculiar task of
Christian believers to promote, and in doing so they need to see beyond the
secular conception of justice in its threefold form of distributive, commutative,
and retributive justice. Distributive justice can never take us beyond the norm of
reparation: commutative justice can provide only due compensation: retributive
justice has no means of repairing damage save by punishment and expiation.
Justice has also a restorative element. Restorative justice alone can do what
law as such can never do: it can heal the fundamental wound from which all
mankind suffers and which turns the best human justice constantly into injustice,
the wound of sin. Restorative justice, as it is revealed in the Bible, alone has
positive power for overcoming sin. (condensed from Schrey et al 1955).”
(Eglash 1959: 116) 20/29

22. Discussion II :
the Religious Background of Eglash’s Theory and
Practice (Continued)
New Lega/Theological Movement after WWII:
- Schrey et al (1955) was a part of Ecumenical and Protestant efforts in
the movement to revive the Biblical conception of justice after the
corruption of judicial system in Nazi Germany.
- The movement was led by Karl Barth (Germany) , Emil Brunner
(Switzerland) , Jacques Ellul (France), all of whom Schrey et al (1955)
quoted frequently, among others.
- A leading German philosopher at the time, Gustav Radbruch (Catholic)
expressed hope for their efforts to repair the error of excessive legal
positivism of early 20th century, along with his own (Catholic-rooted
conception of “the nature of things”)
21/29

23. Discussion II :
the Religious Background of Eglash’s Theory and
Practice (Continued)
“Trouble is that any ideal, any cause, including that of religion, seeks
tits particular interest at law by pleading a particular concept of
justice and there is no agreed arbiter who stands above the
contending parties... But the present emergency in the field of law
calls for more industrious and better informed help from theology
than has hitherto been available. “(Schrey et al. 1955:28)
「困ったことは,いかなる理念,いかなる主義（宗教もその例外でない）も,特定の正
義の概念を陳述することによって,法における特定の利益を求め,互いに抗争する諸
団体が,政治的,社会的,イデオロギー上の確信を顕示して譲らない中にあって,それら
を超越した,一致した調停者がないことである。・・・しかし法の分野における現
代の緊急事態は,神学がこれまでなしえたよりも,さらに活動的な,いっそう事情に通
じた助力を提供することを要求している。」（Schrey et al 1963: 32）
22/29

24. Discussion III :
The Biblical Justice as Restorative Justice
1 The Bible depicts justice as God’s personal righteousness revealed in
concrete historicity; and this righteousness is the restoration of the
relationship between God and people.
“It can be said without exaggeration that the Bible, taken as a whole,
has one theme: the history of the revelation of God’s righteousness. ..
but they do not fall into a neat pattern from which the orderly mind of
an Aristotelian thinker can abstract a formal account of some
common attribute. ... and here the ‘righteousness’ is the restoration
of the vital relationship between God and men ....” (Schrey et al.: 51)
「聖書は全体としてみる時,一つの主題をもっているといっても過言ではない。神
の義の啓示の歴史がそれである。・・しかしそれら[=神の義の諸事例]は,アリスト
テレス派の思想家が,整然とした論理をもって,ある共通の属性について形式的叙述
を抽象することができるように,整然と分類することはできない。・・そしてここ
では,『義』とは神と人との間の生命的な関係の回復であ[る]・・（Schrey et al
23/29
1963: 62-63）

25. Discussion III :
The Biblical Justice as Restorative Justice (Continued)
2 The Bible depicts justice as people’s collective response in the
relationship with God.
“[I]n that history the people of Israel have a central role ... because on
God’s part [the righteousness] is directed towards life in community
relationships, and the regulation of these by law is of quite central
importance. .. ‘Righteousness’, whether on God’s part or on the part of
the community, was disclosed in any action which served to maintain or to
rectify the community-relationship in which the several parties stood with
one another.” (Schrey et al.: 51-52.)
「[義]の歴史において,イスラエルの民は中心的役割を担う。・・神の側からすれば,義は
共同体諸関係の生活に向けられており,これらの関係を法によって規整することは全く中
心的な重要性をもつものであるからである。・・『義』は神の側であれ,共同体の側であ
り,数個の当事者がお互いに係わり合う共同体諸関係を維持し・矯正するのに役立ついか
なる行動においても顕わされた。」（Schrey et al 1963: 63-64）
24/29

26. Discussion III :
The Biblical Justice as Restorative Justice (Continued)
3 The Bible depicts the human justice as contractual and effortful (or
creative) act appropriately fulfilling God’s purpose of salvation, rather
than a mechanical reflection of the doctrine of creation. It sees the justice
as practical and future-looking, rather than fixed state of creation.
“The revelation of righteousness, here and in the subsequent covenant-
enactments, confers on man his right to live in community, and this
carries with it some mode of ordering the community so as to leave room
for God to effect his salvation of men. .. ” (Schrey et al.: 65.)
「神の義の啓示は,ここでもまたその後の契約設定においても,人間が共同体の中で生きる
べき権利を授け,またそれとともに神の救いの業のための余地を残すような方法で,共同体
を秩序づける何らかの様式をもたらす。」（Schrey et al 1963: 81）
25/29

27. Discussion III :
The Biblical Justice as Restorative Justice (Continued)
4 The question of love and justice is posed as a political question; what
are the proper relationship between the biblical teaching and the secular
law and political authority?
“ It is this brotherly love which is constitutive of true community among men. But
there always remains an element of paradox in the notion of a ‘law’ of love or a
commandment to love. And it would seem that justice, which is properly enjoined by
law, must fall short of anything worthy to be called love, and that in some instances
the requirements of justice may conflict with the prompting of love. Where love may
forgive, justice calls for a recompense; where love may overlook a fault, justice calls
for punishment. ” (Schrey et al.: 181-182.)
「この兄弟愛こそ,人々の間における真の共同体の構成要素となるものである。しかし愛の『律
法』,あるいは愛せよとの誡命の観念には常に矛盾の要素がある。そして本来的に法によって命令さ
れる正義は,愛と呼ばれうるいかなるものにも劣ると思われるであろう。また,ある場合には,正義の
要求は愛の命令と矛盾すると思われるであろう。愛が許そうとするとき,正義は賠償を要求する。愛
が過失を寛恕しようとするとき,正義は処罰を要求する。」（Schrey et al 1963: 233）
26/29

28. Discussion III :
The Biblical Justice as Restorative Justice (Continued)
- There seems to be tensions between the biblical teaching of love and
secular justice. In the following quotation, Text in Italics indicates the
parts quoted by Eglash.
“This aligning of justice and love is something which it is the peculiar task of
Christian believers to promote, and in doing so they need to see beyond the
secular conception of justice in its threefold form of distributive, commutative
and retributive justice. Justice has also a restorative element. It is, perhaps
misleading to picture a fourth element which can be added at will to the other
three. Walther Schönfeld (Über die Gerechtigkeit, 1952), ... maintains that
justice as the world knows it in its public life is three-dimensional ... but that a
four-dimensional justice, or perhaps a fourth dimension of justice, is disclosed
to the Church, but hidden from the world, in Jesus Christ. The effect of this
four-dimensional vision is ... to provide a new total view of man in
community; and to uncover possibilities which are simply not there in terms
of three-dimensional vision. ...Restorative justice alone can do what law as
such can never do: it can heal the fundamental wound from which all
mankind suffers and which turns the best human justice constantly into
injustice, the wound of sin.” (Schrey et al. 1963: 182-183) 27/29

29. Discussion III :
The Biblical Justice as Restorative Justice (Continued)
“[I]t is difficult to maintain the thesis that justice and loe really
coincide, in the circumstances of this sinful world, without falling into
an absurd use of language in extreme cases; e.g.that the waging of a
‘just’ war, or the infliction of a just, though severe, punishment, are
really acts of love. These two norms of conduct seem in fact to have
fallen apart. ” (Schrey et al.: 182.)
「しかし,この罪深い世界の情況の中で,正義と愛とが実際に一致するという命題を維持
しようとすれば,極端な場合における言葉の不合理な使用法に陥らざるをえない。たと
えば『正しい』戦争の遂行,あるいは厳しくはあるが正しい刑罰を課することが真に愛
の行為であるなど。これら二つの行為の規範は,事実上,別々になっているように思われ
る。」（Schrey et al 1963: 234）
28/29

30. Discussion II :
the Religious Background of Eglash’s Theory and
Practice (Continued)
The quoted part of Schrey et al 1955 is about a new conception of justice
as manifested in the Bible and its relation to the secular/legal justice.
“The aligning of justice and love is something which it is the peculiar task of
Christian believers to promote, and in doing so they need to see beyond the
secular conception of justice in its threefold form of distributive, commutative,
and retributive justice. Distributive justice can never take us beyond the norm of
reparation: commutative justice can provide only due compensation: retributive
justice has no means of repairing damage save by punishment and expiation.
Justice has also a restorative element. Restorative justice alone can do what
law as such can never do: it can heal the fundamental wound from which all
mankind suffers and which turns the best human justice constantly into injustice,
the wound of sin. Restorative justice, as it is revealed in the Bible, alone has
positive power for overcoming sin. (condensed from Schrey et al 1955).”
(Eglash 1959: 116) 29/29

31. Concluding Remarks
- Eglash’s theory and practice of RJ were influenced by the penological and
psychological movement in 1950s.
- Eglash’s theory and practice have much in common with the post world war
Christian legal philosophy and may be influenced by the problematics of
Christianity and the State at the time.
- The Christian Jurisprudence in 1950s represents some unsolved tensions in
combining the biblical idea of restorative justice and secular idea of legal
justice. I suggest that the tensions and problems are political ones; perhaps
these tensions and problems can only be solved through practice.
- The theory/practice by Eglash presents a way of going through the tensions
and problems of modern criminal law practically and creatively. Perhaps, the
tension between love and justice can only be solved by prospectively
practicing of restorative justice itself, including building appropriate theories.
28/28

32. References
Barnett,R.1977"Restitution: An New Paradigm of Criminal Justice." Ethics 87:
(http://randybarnett.com/restitution.html, accessed on 2012/2/18)
Barth, Karl 1963a「義認と法」（井上良雄訳）桑原武夫他（編）『世界思想教養全集・２１・
現代キリスト教の思想』河出書房新社,159-221.
------------------ 1963b「キリスト者共同体と市民共同体」（蓮見和男訳）桑原武夫他（編）
『世界思想教養全集・２１・現代キリスト教の思想』河出書房新社, 223-270.
Braithwaite, John 1989 Crime, Shame and Reintegration. Cambridge University Press.
------------------ 2002 Restorative Justice and Responsive Regulation. Oxford University Press.
Bridges, James H., John T. Gandy & Jamese D. Jorgensen 1979 "The Case for Creative Restitution in
Corrections." Federal Probation 43:28-35.
Brunner, Emil 1943 Gerechtigkeit: Eine Lehre von den Grundgesetzen der Gesellschaftsordnung.
（=1952（日本語訳）『正義』酒枝 義旗訳,三一書房,=1999（日本語新訳）『正義―社会秩序の基
本原理』（寺脇丕信訳）聖学院大学出版会）
Cantor,G. (1976) An End to Crime and Punishment, The Single.
Christie, Nils 1977 "Conflicts as PropertyA" British Journal Criminology 17:1-15.
Cohen, Irving E. 1944 "The Integration of Restitution in the Probation Services," Journal of Criminal
Law and Criminology, 34(5): 315-321.
Consedine, Jim & Helen Bowen 2001 『修復的司法―現代的課題と実践』前野 育三, 高橋 貞彦
(訳),関西学院大学出版会. 1/6

33. References (Continued)
Cressey, D.R. 1954a "Suggested as a Model: Alcoholics Anonymous" Science News Letter June 19,
1954.
------------------ 1954b "Contradictory Theories in Correctional Group Tehrapy Programs." Federal
Probation 18:20-26.
------------------ 1954c "Changing Criminals: Applications of the Theory of Differential Association,"
American Journal of Sociology. 61(2):116-120.
Cunneen,Chris & Carolyn Hoyle. 2010 Debating Restorative Justice. Oxford and Portland, OR: Hart
Publishing.
Daly,Kathleen 2002 "Restorative Justice : The Rreal Sstory" Punishment & Society 4: 55-79.
Eglash, Albert 1958a "Creative Restitution: A Broader Meaning for an Old Term" Journal of Criminal
Law, Criminology and Police Science 48(6): 619-622.
-------------------- 1958b "Youth Anonymous" (1958) Federal Probation 22:47-49.
-------------------- 1958c "Offenders' Comments on Creative Restitution" The Journal of Social Therapy
4(1 & 2): 32-40 (1958).
-------------------- 1958d "Adults Anonlymous" (1958) Journal of Criminal Law, Criminology and
Police Science 49(3): 237-239.
-------------------- 1958e "Creative Restitution. Some Suggestions for Prison Rehabilitation Programs"
American Journal of Correction XX:20-34.
-------------------- 1959 "Creative Restitution: Its Roots in Psychiatry, Religion and Law" British
Journal of Delinquency 10: 114-119.
-------------------- 1977 "Beyond Restitution: Creative Restitution. In Hudson & Galaway 1977:91-99.
2/6

34. References (Continued)
Eglash, Albert & Ernst Papanek 1959 "Creative restitution: A Correctional Technique and a
Theory." (1959) Journal of Individual Psychology, 15: 226-232.
Ellul, Jacques 1960 The Theological Foundation of Law. New York: The Seabury Press.
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