Healing Hearts or Righting Wrongs? A Meditation on the Goals of Restorative Justice

21 Pages Posted: 4 Oct 2004 Last revised: 26 Jun 2009

Abstract

Central to both retributive and restorative justice is a concern with righting wrongs and restoring equilibrium to a moral order upturned by criminal wrongdoing. Both restorative and retributive justice acknowledge that moral equilibrium is regained only when the victim's dignity is acknowledged, the offender held accountable, and the community's moral norms reaffirmed. Retributive justice theory posits that these goals are best accomplished through prosecution and punishment. Restorative justice maintains that these goals are best achieved through a communicative process in which the victim tells her story and the offender acknowledges wrongdoing and makes amends. Implicit in these different accounts are different understandings of how victims and offenders recover from the experience of victimization and oppression, and how offenders and societies can best be encouraged to develop as moral entities. More fundamentally, if justice requires some combination of victim satisfaction, offender accountability, and community norm-affirmation, then retributive and restorative justice theories weigh and prioritize these justice-jobs differently.

This essay explores these different understandings of the various goals of justice in restorative and retributive schemas, and situates these understandings in a brief accounting of South Africa's experiment with restorative justice principles at the close of the apartheid era. South Africa's Truth and Reconciliation Commission (TRC) was established to give victims an opportunity to confront their tormenters, to provide amnesty to offenders acknowledging their crimes, and to construct, from victim and offender narratives, a communal truth of the country's shrouded past.

The story of the TRC proceedings provides an opportunity to examine the application of restorative justice principles on an epic scale. In assessing the TRC's triumphs and shortcomings, this essay seeks to connect restorative justice's therapeutic aspirations with some of its pragmatic shortcomings. It will suggest that while restorative justice, like mediation, offers the promise of psychologically healing resolutions, these outcomes may be purchased at the expense of the material change necessary to fulfill the law's promise of equal treatment, opportunity and the nurturing of human dignity.

Keywords: Restorative justice, retributive justice, South Africa, Truth and Reconciliation Commission

Suggested Citation

Waldman, Ellen, Healing Hearts or Righting Wrongs? A Meditation on the Goals of Restorative Justice. TJSL Public Law Research Paper No. 04-16. Available at SSRN: https://ssrn.com/abstract=598502

Ellen Waldman (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4346 (Phone)

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