Session 2: Forgiveness and Justice
Chair: David White

Forgiveness and Reconciliation in Restorative Justice Conferences
Bas van Stokkom
Centre for Ethics, Radboud University Nijmegen, The Netherlands

In this paper some findings of peacemaking in restorative justice conferences and mediation settings are presented. In scripts and handbooks in which the terms and conditions of restorative conferences are exemplified, forgiveness and reconciliation are not explicitly mentioned. However, many proponents of restorative justice assume that ‘coming together voluntarily’ will lead to rapprochement and reconciliation. Some researchers claim that expressing forgiveness belongs to the ‘core sequence’ of emotional dynamics. Even if the emotional exchange during this sequence is only very brief, it is the key to restoring the victim’s peace of mind and to instilling a sense of reacceptance in the offender. Other research findings in many ways contradict these supposed dynamics. The meeting is an unpredictable event in which victims have a strong urge to be recognized, and even to ‘submit’ the other. They don’t want ‘closure’ or ‘restoration’, but open up the self, which is accompanied by feelings of being ‘fractured’ and not being able to articulate what exactly is the harm done. Many victims resist the use of words that reduce the inhuman to functional information. Others experience the pressure to come to terms as threatening. Some researchers claim that the aim to reconcile is a ‘dangerous utopia’. These observations make clear that notions as ‘forgiveness’, ‘apologizing’ and ‘restoration’ are too ‘big’ and ill suited to function as principles for restorative justice. It seems inappropriate to burden the process of coping with past injuries with these concepts. The process of moral learning within restorative justice conferences might better be conceived in terms of opening up and developing (beginnings of) understanding.

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Forgiveness and Reconciliation in Transitional Justice Practices
Neelke Doorn
Centre for Ethics, Radboud University Nijmegen, The Netherlands

In the last decades the notions of forgiveness and reconciliation are applied more and more in the public sphere. Restorative justice conferences and truth commissions as a way of accounting for gross human rights violations are just a few of the examples. In this paper the role of forgiveness and reconciliation in transitional justice processes is examined. It is claimed that forgiveness in the public sphere is often difficult if not impossible to achieve, and that it could generate counterproductive processes.
In the context of transitional justice, defining forgiveness is a difficult undertaking. It is unclear what ‘collective forgiveness’ is, if it is a realistic concept at all. The expectation of forgiveness seems to generate much resistance, even when former oppressors take up responsibility or do show regret. Often past-sensibilities are too strong, and in many victim-groups self-respect is lacking. Moreover, the role of emotions in public (and mediated) settings remains obscure.
These complexities raise the question whether forgiveness is an appropriate ideal to aim at in transitional justice processes, especially when participants are involved in attempts at reconciliation in more or less coercive ways. For victim-groups that have suffered severe violence and humiliation, it seems more important to regain some basic sense of self-worth and trust in one’s own identity first. Only then people can enter into the long process of rebuilding relationships of trust with former wrongdoers.

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The Legal Status of Apologies and the 'Blame Game': Do 'Sorry' Statements make you Liable?
Anne Macduff
ANU College of Law, Australian National University, Australia

Recently, the Australian government has been reluctant to make apologies on two highly public issues despite overwhelming community support. It has refused to apologise to the indigenous peoples taken from their families in a policy of assimilation from 1920’s- 1980’s. It has also refused to apologise to Australian citizens mistakenly held in the detention centres or deported on the mistaken belief that they are illegal immigrants. In both instances, the Australian government justified its reluctance to apologise as not wishing to expose the State to claims of civil liability. I am interested to explore one aspect of this refusal, that is, that statements of apology are more likely to lead to successful civil litigation.
The paper will look at the law that applies to apologies in Australia, to determine what legal affect apologies have on the determination of civil actions. In particular, the paper will examine how apologies have been excluded as evidence of admissions in civil cases in Australian courts.  For comparison, the paper will also undertake a analysis with other common law legal systems, to identify the legal status of apologies in other common law countries such as Canada, NZ and the US.
The project will then evaluate the different legal treatment of apologies in order to evaluate the ideal status the apologies should have in law. I am particularly interested in critically examining the exclusion of legal apologies from admissions. The legal policy justification for doing so is usually on the basis that it prevents escalating conflict and aids resolution. However, I believe this legal approach undermines the social symbolic value of apologies and perhaps other strategies for recognising apologies should be developed.
The paper seeks to contribute more broadly to an understanding how the law of apology interacts with moral notions of justice and the recognition of harm, in the particular context of negligence law.