Source: (2001) South African Journal of Human Rights. 17:531-562.
Restorative justice is often held up as a virtue promoted by the South African Truth and Reconciliation Commission (TRC). In granting amnesty and forgoing retributive punishment, it has been argued, the TRC promoted healing, harmony and reconciliation. Restorative justice should instead be understood as a political myth to which some Truth Commissioners mistakenly appealed while grasping for a moral justification for amnesty. No such justifications — even in terms of a refined conception of restorative justice — is available. The article takes an analytic approach to retribution, forgiveness and mercy and uses plausible definitions of these concepts to suggest that restorative justice — as conceived by the TRC — failed to take full account of the value of retribution, and the meanings of forgiveness and reconciliation. If we are to make moral sense of what happened when the TRC dispensed amnesty, it cannot be as a serious attempt to promote an alternative form of justice, but as a tense and agonising compromise necessary to maximise the moral gains of transition from apartheid to non-racial democracy. Using the philosophical notion of ‘moral remainder,’ this article sketches out such a re-interpretation. (author’s abstract).
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