3. Reconciliation: The Practices of Justice and the Virtue of Mercy
The justice that seeks to restore rights relationships is therefore a form of justice that is infused by mercy. In its working out in the political context it is described as reconciliation, a task that is emblematic of the Christian message of peace in history. Indeed, this history of reconciliation that Christians are called to enact is made possible in concrete political circumstances precisely through the practices of justice infused by mercy. No strict adherence to rights or to deserts, important though they are, will accomplish the restoration of right relationships or the reconciliation that is so urgently sought in many political contexts around the world.
South Africa’s Truth and Reconciliation Commission (TRC) is perhaps the most ambitious political experiment in restorative justice to date. Established in 1995 it sought to reveal the truth about politically motivated violations of human rights during the years of apartheid.
However, it did so in a manner whereby those who perpetrated great acts of violence could be held accountable for their actions while also being given the chance to acknowledge their responsibility, to seek forgiveness, be granted amnesty and ultimately contribute to the creation of a new society characterised by equality, reconciliation and unity. Structured around three Committees — on Human Rights Violations, on Amnesty, and on Reparations and Rehabilitation — the TRC sought to forge a comprehensive view of justice as the restoration of right relations. It embodied the philosophy of restorative justice by seeking to demonstrate that justice and mercy are neither mutually exclusive nor one and the same. Mercy, which includes the possibility of forgiveness, does not stand apart from justice, but is only possible by attending to the demands of justice. Moreover, as the TRC granted, the demands of justice necessitate forms of restitution or reparation, either monetary or symbolic, or both. A core element of restorative justice, reparations recognise past wrongs, acknowledge the systemic impact of these wrongs over decades (sometimes centuries), seek to redress inherite dexclusions and to repair political structures. They are an essential component of the pursuit of justice as the restoration of relationships, and are key to the task of building sustainable political communities.[17]
Two decades after its establishment assessments of its effectiveness in achieving its political objectives vary.[18] Allied to the question of its political effectiveness has been a debate about its morality, with proponents of the TRC arguing that it was an exercise in the pursuit of justice, while critics insisting that it was an abandonment of justice to the expediency of political compromise. At its core this is a debate about the legitimacy of the concept of justice as restorative. Strong defences from Archbishop Tutu, Alex Borraine and other officers of the TRC refute the sharp distinction between doing justice and seeking reconciliation, anchoring this commitment to restorative justice both in the African tradition of ubuntu and in the Christian message of reconciliation.[19] In the words of Archbishop Tutu ‘perhaps justice fails to be done only if the concept we entertain of justice is retributive justice, whose chief goal is to be punitive… We contend that there is another kind of justice, restorative justice, which was characteristic of traditional African jurisprudence. Here the central concern is not retribution or punishment. In the spirit of ubuntu, the central concern is the healing of breaches, the redressing of imbalances, the restoration of broken relationships, a seeking to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community he has injured by his offense.’[20]
While some countries have opted for an exclusively prosecutorial, deserts-based approach to securing justice for past wrongs, others, drawing inspiration from South Africa, have framed their objectives in restorative terms, albeit rarely with the level of ambition associated with the TRC. In Northern Ireland for example, although the 1998 Good Friday Agreement did not establish a national reconciliation process, it did make a commitment to apply a restorative approach to one of the most contested aspects of the conflict, that is policing.[21] Both statutory and community-based models have been implemented with considerable success particularly in the youth and probationary contexts. Innovative community-based restorative justice programmes, both nationalist and loyalist, have also been effective in reducing the paramilitary systems of punishment that have been a feature of the conflict for decades. Traditionally in these communities the paramilitaries meted out often violent punishment for criminality, so that communities were not only marred with the effects of the political conflict, but also with the violence visited on them by their self-declared protectors. However, through organisations like Community Restorative Justice Ireland (predominantly nationalist) and Northern Ireland Alternatives (predominantly loyalist) there has been a transition from violent forms of retributive justice to restorative justice alternatives.[22] Moreover, as part of the commitment to reconciliation civil society groups, including churches, have promoted restorative justice as a social good[23] and have implemented its practices in schools, colleges, prisons, in social care environments and in the churches.[24]
[17] In addition to the other works referenced in this essay see Russell Daye, Political Forgiveness, Lessons from South Africa’s Truth and Reconciliation Commission, Maryknoll: Orbis, 20002, Antje Kroj Conditional Tense: After the South Africa Truth and Reconciliation Commission, Salt Lake City UT: Seagull Books, 2013, and Charles Villa-Vicencio in The Provocations of Amnesty: Memory, Justice and Impunity (edited with Eric Doxtader) Trenton NJ: Africa World Press, 2004.
[18] Amy Gutmann and Dennis Thompson, ‘The Moral Foundations of Truth Commissions’, in Robert I. Rotberg and Dennis Thompson (eds.), Truthv. Justice: The Morality of Truth Commissions, Princeton: Princeton University Press, 2001, 22-44.
[19] See Archbishop Desmond Tutu, No Future Without Forgiveness, New York: Doubleday, 1999, and Alex Borraine’s, A Country Unmasked, Inside South Africa’s Truth and Reconciliation Commission, Oxford: Oxford University Press, 2001, and Borraine’s more recent What’s Gone Wrong? South Africa on the Brink of Failed Statehood, New York: NYU Press, 2014.
[20] Desmond Tutu, No Future, op. cit., p. 51.
[21] Good Friday Agreement 1998, 7.12 and 9.1 available at https://www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/northernireland/good-friday- agreement.pdf accessed January 24th, 2017.
[22] J. M. McGloin, ‘A Historical Consideration of the Police and Prosecution/Courts in Northern Ireland’ 16 International Criminal Justice Review, 2006, pp. 77-98.
[23] See for example the Irish School of Ecumenics, Inter-Church, For a programme at http://www.tcd.ie/ise/news/ICF-Winter-2016 accessed on January 24th, 2017. The scars of terror, discrimination and injustice cast a long shadow world-wide, and transitions to more inclusive and equitable political arrangements are complex. Debates about what justice entails in these contexts are inevitably contentious and views deeply held. The temptation to respond through exclusively retributive forms of justice is strong. Yet, the Christian tradition, in concert with other spiritual and religious traditions, offers a vision of justice as restoration – a form of justice certainly – but one that is based on the acknowledgment of wrongs done, the need to repair of lives destroyed, the commitment to the restoration of relationships and the healing of societies.
[24] See Brian Payne, Vicky Conway, Colleen Bell, Alexis Falk, Helen Flynn, Conor McNeil and Fiona Rice, Restorative Practices in Northern Ireland: A Mapping Exercise, 2010.