Restorative vs. Retributive Justice as Vehicles for a Human Rights Culture

Source: (2001) Paper prepared for delivery at the 2001 Annual Meeting of the American Political Science Association, San Francisco, August 30-September 2, 2001

Can justice be done without punishment? The idea of retributive justice denies this possibility, asserting that punishment is required to correct a moral imbalance created by wrongdoing and to maintain a legitimate moral and legal order. In recent years an intriguing counterpoint to retributive justice has appeared in a number of contexts, most notably in the work of the South African Truth and Reconciliation Commission. Referred to as “restorative justice,” it is described as an alternative – perhaps even a morally superior alternative — to retributive justice. In its Final Report the Commission appeared to make two claims about restorative justice: that it is (1) an alternative conception or dimension of justice and that it is (2) better suited than retributive justice to the task of building a human rights culture, especially in societies undergoing transition from repressive authoritarian rule to democracy. My paper seeks to unpack and analyze these two claims. I compare retributive and restorative justice and examine how each approach seeks to reshape relationships among victims, perpetrators, and the larger community. I conclude that restorative justice is indeed a coherent variant of corrective justice and that it could fruitfully be applied to a variety of contexts, not only to transitional societies. However, this ideal conception of restorative justice is difficult to pursue well, as the struggles of the TRC demonstrate. And because neither forgiveness nor remorse can be compelled (ethically and logically), advocates of restorative justice should affirm the legitimacy of retributive justice even while promoting an alternative approach. Author’s abstract.