Punishment, Reconciliation, and Democratic Deliberation

Source: (2004) In, Lukas H. Meyer, ed., Justice in Time: Responding to Historical Injustice. Baden-Baden: Nomos Verlagsgesellschaft. Pp. 383-408.

As David Crocker remarks, around the world societies and international institutions are seeking ways to deal with past injustices, human rights violations, and atrocities, whether committed by a government against its own people, by its opponents, or by combatants in an international conflict. Often, debates about how to respond to such wrongs are conducted along the lines that trials and punishment, on the one hand, and reconciliation, on the other, are fundamentally at odds with each other. Hence, the assumption is that societies and institutions must choose one or the other. Further, it is generally posited that reconciliation is morally superior to punishment. As an example of all of this, Crocker points to Desmond Tutu’s moral arguments in defense of the South African Truth and Reconciliation Commission’s (TRC) framework of “truth for amnestyâ€? and reconciliation in contrast to the “Nuremberg trial paradigm.â€? Tutu offers two moral reasons for a TRC-like approach. Crocker terms the first the “argument against vengeance,â€? a non-consequentialist argument against punishment and retribution. Crocker terms the second the “reconciliation argument,â€? a consequentialist argument in favor of reconciliation (construed as the restoration of social harmony) through amnesty and forgiveness. In this chapter, Crocker assesses Tutu’s two moral arguments. In contrast to Tutu, Crocker contends for a conception of retribution which is distinct from vengeance and which is an appropriate aim of punishment. Crocker also proposes a conception of reconciliation different from Tutu’s. Further, Crocker maintains that a society must be wary of overestimating the restorative effect of amnesty and forgiveness as well as underestimating the reconciling power of justice.