Professional Documents
Culture Documents
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particular details about the society in question and its history, and how
the punishment is decided and carried out, and generalizing about how
societies experience dealing with past wrongdoing is fraught with difculty. The second is theoretical, and it is the one I want to emphasize.
Punitive justice and compensatory justice are not the only conceptions of
transitional justice that have application here. There is another according
to which justice can arguably be done through processes that are not at
odds with but further the project of mending the social fabric and
restoring community. This is restorative justice, and it has received
increasing attention in recent years (see Hamber 2009; Bennett 2008;
Rotberg and Thompson 2000; Walker 2006; Dzur and Wertheimer 2002;
Govier 2002; Marshall 2003; Minow 1998).
The aims of restorative justice clearly distinguish it from both punitive
and compensatory justice. Restorative justice practices, of which there are
different kinds, seek to repair the harm caused by wrongdoing; make the
experiences and needs of the victims central to the justice process; and
demand genuine accountability and responsibility taking from the perpetrators. Punishment of the perpetrators is not precluded, but neither is it
emphasized, since it does not offer them the opportunity to gain
reacceptance or reintegration into their communities. And while compensation is often sought for the victims, it does not exhaust the range of
reparative acts that can achieve what is said to be a central objective of
restorative justice, namely, to restore the dignity of the victims.
Two sorts of restorative practices are highlighted in this article: (1)
processes of public apology and forgiveness and (2) commemorative
ceremonies, in the sense in which Paul Connerton uses the term (Connerton 1989). I select these two practices for several reasons. First,
because they are frequently mentioned in the restorative justice literature;
second, because there are interesting connections and tensions between
them that have not been adequately explored; and third, because each is
essentially related to memory and because the role of memory in dealing
with injustice and oppression, and the importance of memory for
achieving the aims of restorative justice, warrant additional philosophical
attention. On the last point, forgiveness is not genuine forgiveness, it is
often noted, if it merely results from forgetting the wrong that was done:
in forgiving, one must retain a memory of what was done and continue to
hold the original negative objection to the offense or wrong action. And
commemorative ceremonies, as the name implies, depend on and seek to
preserve memory, in this case, the memory of wrongdoing, in a communal
activity of co-remembrance (see Casey 2000). The involvement of memory
in these restorative practices warrants our saying that memory, being
necessary for both forgiveness and commemoration, is valuable to the
extent that and for the reasons that these practices are valuable, among
which is their role in realizing restorative justice. This is true as far as it
goes, but it does not go far enough. For it does not tell us enough about
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I assume but cannot argue for it here that groups, at least small ones, as well as
individuals are capable of forgiving. See Govier 2002, 7899. Jean Bethke Elshtain claims
that forgiveness primarily takes place between persons, or perhaps small communities
(2003, 47).
5
This view is described and defended in Dzur and Wertheimer 2002; Digeser 2001.
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6
The South African Truth and Reconciliation Commission made a signicant contribution to transforming attitudes about the nature of transitional justice, but it made
forgiveness the central task of restorative justice. See Hamber 2009, 78; Brudholm 2008,
4256.
7
On some understandings of what an apology consists in, these practical steps are
included in it. Nick Smith distinguishes between different sorts of apologies, one of which he
calls the categorical apology, which includes taking practical responsibility for the harm
she causes, providing commensurate remedies and other incommensurable forms of redress
to the best of her ability (2008, 14042).
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this intention (see Dzur and Wertheimer 2002; Digeser 2001; Maitra
2009). There is this further similarity: just as more than publication and
recognition of the speakers intention to get married is required for the
utterance to count as actually marrying, more is required for forgiveness.
For example, I cannot forgive if I do not have the standing to do so.
It might be thought that what we have here are not really two
competing conceptions of forgiveness but two conceptions each of which
maps onto a different domain of human interaction: one is the interpersonal (sentiment based), the other the impersonal or political (performative). I doubt, however, that this way of characterizing the distinction
can hold up, for even in interpersonal contexts I forgive you sometimes
has the sense given it by performative accounts. One might reply that in
interpersonal contexts, to say I forgive you without some change of
heart toward the offender is merely to utter certain words. But this is false,
for there are behavioral consequences to the granting of forgiveness, as
this is understood by performative accounts. For example, it would be
inconsistent with a victims adoption of a policy of forgiveness toward an
offender to continue to demand additional apologies from him.
My main aim here, however, is not to argue for one type of view in
preference to the other. Both conceptions, I believe, express something
important about forgiveness, and each sheds light on how forgiveness in
response to apology can function to promote restorative justice. Rather, I
am more interested in using performative accounts as a foil to the sort of
view I want to outline here. The key difference has to do with the role they
assign sentiments and how they evaluate these from a moral point of view.
Because performative accounts essentially disconnect forgiveness from
anger and other negative emotions, their explanation of the value of these
emotions is necessarily restricted to their implications for policy. That is,
they are not in a position to explain why having negative feelings toward the
wrongdoer because of his wrongdoing, and why giving up some but perhaps
not all of them, might be matters of moral importance in themselves apart
from their bearing on the victims treatment of the offender. On performative accounts, certain negative emotions, especially the retributive ones, may
be signicant in that they prevent the victim from really adopting a policy of
forgiveness toward the offender. Otherwise, they are indifferent to whether
the victim feels these emotions or not. This is not the case with the
sentiment-based account I argue for. On this view, the sentiments are moral
emotions that are intimately bound up with the moral integrity of the victim
and that have expressive point and value.
Of course, it would be unfair to criticize performative views for failing
to succeed at something they werent trying to do, that is, explain what
makes certain negative emotions centrally important to forgiveness. And
some sentiment-based views might not have much to say about these
negative feelings beyond noting that it is a feature of normal human
psychology that wrongdoing arouses anger in the victim and that
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is compatible with this that after the victim overcomes resentment, which
she must do to forgive on the orthodox sentiment-based view, she can
evince her nonendorsement of the degrading message in other ways, and
that this nonendorsement can also be linked to her self-respect. But she
will have to express this in a different emotional manner, without
predominantly angry feelings. Now consider this case from Norvin
Richards: It is possible for mistreatment to make one not angry or
contemptuous but just very sad, if it is mistreatment at the hands of a
loved one. Imagine, for example, that your grown son had badly let you
down. This might make you angry, of course, but it might also make you
feel deeply disappointed in him, instead. You are hurt that he should act
in this way, not angry, not moved to hatred (1988, 78).
Richards goes on to maintain, quite rightly I believe, that it should also
count as forgiveness to abandon these nonangry feelings if this is done for
the right reasons. Why should this be? For Murphy, resentment is
important because it is one way of evincing nonendorsement. This
leaves open the possibility that there are others, and my contention is that
sadness, disappointment, and hurt have much the same function in
Richardss example as resentment does in the passage from Murphy.
That is, they are ways of evincing, emotionally, that one does not endorse
how one has been treated and, in this sense, are forms of protest (or quasiprotest) against wrongdoing. This enables them to play a role analogous
to that of resentment in a sentiment-based account of forgiveness and
provides justication for Richardss assertion that we can sensibly talk
about forgiveness even in cases where anger is not an issue.
As Richardss example suggests, it may be nonangry negative emotions
that need to be overcome in order to forgive. It is a false dichotomy,
therefore, to posit (a) forgiveness and (b) vengeance, hatred, and bitterness
as the only alternatives: there is also nonangry nonforgiveness. Nonangry
negative emotions might also continue or surface after forgiveness has been
achieved. In addition, the points I have made about the links between
negative nonangry emotions, protest, and self-respect are quite general.
That is, they are not necessarily conned to the negative nonangry emotions
that occur prior to the achievement of forgiveness but may apply as well to
those that occur after. The expressive point and moral signicance of these
emotions after forgiveness can be the same as their point and signicance
before. It consists in being a form of emotional distress that expresses
nonendorsement of mistreatment and disapproval of the wrongdoer for it,
and that reveals, to oneself, the offender, and ones community, what one is
unwilling to accept as a matter of self-respect. Memory is also implicated.
The disapproving moral emotions constitute emotional memories of wrongdoing, and these are morally signicant because and for the same reason
that the emotions are.
In this section, I have tried to answer the question: What value is there
in remembering that one was wronged? Or rather, what value is there in
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that are not let go or gotten rid of by forgiveness, but in time they may
abate as well. As they do, the victims might continue to remember that
they were unjustly harmed in the past, but the memory will cause them
less and less distress and pain, so will lose its vividness and probably much
of its motivating force. The relationship between memory and emotion
goes the other way too: to the extent that negative emotions are triggered
by the memory of wrongdoing, they too will fade as the memory of
wrongdoing recedes. Over time, the victims will likely recall the wrongdoing on progressively fewer and fewer occasions and with progressively
less impact on their thoughts, feelings, and actions, assuming measures
are not taken to shore up memory. Eventually, in this scenario, the
victims and others whose memories are similarly affected will be left with
only nonaffective declarative memories of the wrongdoing, and without
the power to evoke emotion through memory, the past wrongdoing will
not much matter to them. They will not give it its due weight, its full
impact and import. This is an important concern in the context of
restorative justice because restorative justice takes time, often many
generations, so the dwindling of memory is a real liability.
This brings us back to the problem of the decay of memory that I
described in section 1. But before commenting on how the memory of
wrongdoing might be prolonged, let me give some additional reasons why
we should want to do so.
4. Backward-Looking and Forward-Looking Functions of Memory
It is a commonplace in the philosophical literature on forgiveness that to
forgive is not to forget. One may eventually forget after having forgiven,
but one cannot forget as a way of forgiving. Memory of wrongdoing is
not just a conceptual necessity, however. It, or rather an emotional
memory of wrongdoing that defends or manifests the self-respect of the
victim, is also necessary if forgiveness is to be a virtue, as many consider
it, and not just a manifestation of weakness or servility. Memory of
wrongdoing that provides the right sort of emotional access to the wrong
indicates that the victim appreciates the wrong for what it was and is,
namely, an unjustied and unexcused injury or slight, and that she is not
willing to resign herself to it. And if she communicates her emotional
distress at the wrong, she communicates her moral disapproval or
nonendorsement of being so treated. Negative emotions that have this
function include but are not limited to the various forms of moral anger,
and include those experienced before as well as after forgiveness, and in
each case they serve to police the victims boundary of self-respect and
establish its contours. This goes a long way toward explaining the moral
signicance of the memory of wrongdoing in the context of forgiveness.
I have been talking about the emotional memories of individual
victims of wrongdoing, but have not been specic about who is to count
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especially if these wrongs have played a dening role in the history of that
community and their legacy continues to shape, even if only implicitly, its
self-understanding. This is an obligation that is owed to the victims of
those wrongs, many of whom may not have survived, not just toward
them but to others (living survivors or others), and it may provisionally be
characterized as an obligation to honor them because of what they
suffered. Obligations to remember victims who were killed or died as a
result of their injuries can be described in Michael Ignatieffs terms as
obligations of keeping faith with the dead (Ignatieff 1998). I acknowledge that there has been considerable resistance in the philosophical
literature to the notion of posthumous duties, but argue that the apparent
oddity can be removed if we understand the obligation as owed not to the
person as dead but to the person, now dead, as he was when alive. Consider
a more homely case. If we love someone, then there are various things we
ought to do to show our special concern and affection, and we are
vulnerable to criticism if we fail to have or show proper affection. In this
sense, according special care and affection can be an obligation or duty of
love. Since the duty is ours to fulll, the death of the loved one does not end
the duty, although it certainly alters how the duty is fullled. The moral
reasons for our duty to love survive, though the bearer of the right does not.
Similarly for the obligation to remember the nonsurviving victims of
wrongdoing: we owe it to them to remember them because of what they
suffered, even if they are now beyond the reach of our service.14
The second argument for the obligation to remember wrongdoing and its
victims is more familiar and less controversial, at least conceptually. It is
encapsulated in the slogans Never again and its Latin American
equivalent Nunca mas, and is part of the rationale for the documentation
of rights violations by truth commissions, for other public forums for
exposing wrongdoers, and for programs to educate the young about the
evils of the past. More broadly speaking, remembering the injustices of the
past, it is argued, is a necessary means to the accomplishment of a number
of important goals, including securing reparations for the victims, providing
therapeutic services for those affected by the wrongs, and preventing the
recurrence of violence and rights abuses. For the latter purpose, the memory
of wrongdoing might be enlisted in criminal prosecutions and maintained
through extrajudicial forms of public scrutiny. This would put the offenders
on notice that they cannot evade responsibility by burying the past and
would perhaps deter others from committing similar crimes in the future. In
addition, lasting institutional and social reforms are needed to prevent a
14
Though there are countless victims of wrongdoing who did not survive to bear witness
to the wrongs they suffered, not all of them, as a practical matter, can be honored by being
remembered. Who should be remembered, why, and by whom, are difcult questions that I
discuss in Blustein 2008, 21121. We need selection principles for memorial obligations that
pair a subset of the living with a subset of victims of wrongdoing, and these principles will no
doubt be complex.
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repetition of the violence and grave human rights violations of the past, and
memory is needed here as well. For without the memories of wrongdoing
providing a reminder of what is to be avoided, such efforts will be imperiled
and may stall. Prevention is not only a social imperative. It is also a moral
obligation, owed to future generations whose security and well-being are
entrusted to those whose conduct determines the kind of society they will
inherit. And since memory is vital for prevention, remembrance is for this
reason an obligation as well.
The claim that there are moral obligations of remembrance, whether of
a deontological or an instrumental nature, obviously leaves many matters
unsettled. How obligations of remembrance are best fullled, how they
can and should be discharged so that they do least harm to other
important social goods, values, and obligations, are difcult questions
whose answers depend on complex details of local history and culture and
the institutional makeup and resources of the given society. Obligatory
though remembrance may be for instrumental reasons, instrumental
considerations also set limits to the obligation. As Jean Bethke Elshtain
notes, People are very fond of citing the philosopher George Santayanas claim that those who dont know their history are doomed to repeat
it. But perhaps the reverse is more likely, namely, that it is those who
know their history too well who are doomed to repetition. Perhaps a
certain amount of knowing forgetting is necessary in order to elude the
rut of repetition (2003, 48).
Why is it important or perhaps even necessary, for the purpose of
fullling these two obligations, that past wrongdoing should elicit some
sort of negative emotional response from its survivors and others? The
question needs to be asked not only about the emotional responses of
individuals considered individually. Since the memorial activities in
fulllment of the obligations include those that are public and communal
in nature, we also have to think about what role the emotional responses
of groups of people play.15
Consider the deontological obligation owed to the victims of wrongdoing
in virtue of having been wronged, and let me answer with some remarks
about the relationship between values and emotions. I concede that victims
can be remembered without affect in triadic propositions of the form, x
remembers that y was done to z (where y is lled in by various details
about the nature of the wrongdoing, its circumstances, and the perpetrators). But even supposing that such remembering is sustainable, which is
doubtful, arguably there is a morally relevant difference between being
15
This raises the issue of whether groups can have emotions. The least controversial view
is that a group experiences an emotion if some signicant portion of its membership feels it.
Another view is that group emotion refers to certain institutional features that tend to
encourage desired emotional experiences in its members (Smith 2008, 242). There are other
views as well. Fortunately, for purposes of this article, I can leave the question of the best
account open.
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something as a simple emotion or an emotional attitude, the distinction between having one specic feeling and being disposed to have a range
of feelings is, in principle at least, clear. In addition to this distinction
between the simple and the complex, Langer draws another: between
the spontaneous or free expression of emotions and the disciplined
rehearsal of emotional attitudes. Putting these two distinctions together,
we can say that rituals involve being disposed to have a range of feelings
that are expressed in a self-controlled and practiced manner. The range of
circumstances in which these feelings are expressed is necessarily restricted
because of the invariant character of ritualistic behavior.
If we accept all this, these remarks establish that commemorative
ceremonies have an emotional dimension, and they help to clarify what it
consists in. Simply put, ceremonies commemorating wrongdoing can
generate emotional responses to it because commemorative ceremonies
are a type of ritual, and rituals essentially involve disciplined affective
attitudes. With a more complete picture of the nature of commemorative
ceremonies in hand, we can now ask what value, moral not psychological,
the disciplined emotionality characteristic of these ceremonies might have.
We know from the discussion in sections 3 and 4 that negative
emotional responses to wrongdoing can have both intrinsic and instrumental value through their links to self-respect, the honoring of victims,
and the realization of desirable transitional goals. Commemorative
ceremonies, drawing upon and eliciting negative emotional responses to
wrongdoing, stand to inherit these values. They have these values when
(1) the participants in them feel moral distress at the wrongs that have
been suffered by individuals (including themselves) and the communities
to which they belong, distress that effectively expresses a protest against
the wrongdoing and that the participants experience as a function of their
intact self-respect (the offenders, of course, might also experience moral
distress, in the form of painful feelings of negative self-assessment); (2) the
ceremonies involve emotions that are a tting or appropriate response by
participants to the wrongful harms suffered by the victims of wrongdoing
who cannot testify on their own behalf, a response that, especially when
embedded in a network of other psychological responses, honors the
victims; and (3) the ceremonies slow the decay of memory so that
worthwhile goals, reparative as well as reconstructive, that depend
upon its persistence can be achieved and sustained.
This conveys something of the moral signicance that commemorative
ceremonies can have because of their emotional character, but obviously
much more needs to be said to ll out this sketch. One point to underscore
is that while commemorative ceremonies can serve as vehicles of protest
against wrongdoing, those who participate in them should not be the
victims and the victim communities alone. The larger community,
including the perpetrators and those who facilitated or beneted from
the wrongdoing, should also participate to acknowledge the legitimacy of
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their grievances and to support them in their protest. Otherwise, the lack
of community involvement might generate resentment among the victims
and set back the prospects for a lasting reconciliation between victims and
perpetrators. Further, it would oversimplify to suggest that one sort of
commemorative ceremony will have all these features and do all these
things. Some commemorative ceremonies are suited to honor the dead;
others might be enlisted in the task of rebuilding society, establishing
relations of respect and trust, and preventing the recurrence of prior
abuses; still others might be vehicles for protest in which the participants
take a stand against unjustied attacks on or violations of their rights.
Moreover, there might be tensions between these different operations of
commemorative ceremonies.22 For example, commemorations chiey
aimed at social reconstruction and political reconciliation can divert
attention from the needs of survivors for whom commemoration serves as
a way of honoring their dead; or commemorations driven by the political
demands of the transitional context might not give victims an opportunity
to properly protest against the wrongs they have suffered. Nevertheless,
what mainly interests me here is commemoration as a type of restorative
justice practice and, considered as such, it is enough to point out its
multiple expressive meanings and uses.
I can now give a more complete response to the concerns I raised at the
outset about memorys tendency to fade with time. Commemorative
ceremonies can strengthen and maintain memories over long periods of
time because they involve repeated retrieval of memories of people and
events, including wrongdoings. But this is only part of the explanation.
Commemorative ceremonies can also do this because they do not merely
involve the repetition of invariant behaviors in a kind of mechanical
fashion, or ones bare acknowledgment of past events without allowing
oneself to become emotionally involved in the review of them. Rather, in
my Langer-inspired account of them, they consist in the emotional
rehearsal of the past and the generation and utilization of negative
emotions that keep the memories alive. Edward Casey describes this
feature of commemorative ceremonies this way: they serve[s] to express
and specify emotion while channeling any tendency to excess. . . . [Their
formality] solemnizes the expression of emotion on the occasion (2000,
225). The emotional quality of commemorative memories, to which
Langer, Casey, and others draw attention, works together with their
repetitive character to combat the decay of memory.
22
Addressing the role of community in restorative justice, Margaret Walker notes that
the harmed community and the community that can effectively respond to support repair
need not be the same collectivity (2006, 222). We can add that the function of
commemorative ceremonies for the harmed community might not be the same as their
function for the community that can effectively take steps to redress wrongdoing, and that
giving priority to one sort of commemoration can divert needed attention from the other.
See also Hamber 2009, 7879.
611
I grant that the repetitive character of ritual may be enough on its own to
promote memory retention, but this does not diminish the importance of
the emotional component. For one thing, those who remember wrongdoing
without affect will remember that wrongs were committed, and perhaps
even that they bear some responsibility for them. But without negative
emotional responses that are triggered by and partially constitute the
memories, and without the perceptiveness and desires that the emotions
involve, the rememberers are likely to lack a sustained motivation to do
something to make up for the wrongs. Furthermore, I dont need to argue
that the emotional character of commemorative ceremonies is necessary for
enhanced memory retention. It is enough for my purposes that the
emotional character of commemoration increases the likelihood of memory
retention and the length of time that memories are maintained.
Langer speaks of disciplined rehearsal, Edward Casey of channeling,
but efforts to discipline and channel emotions are not always successful.
Emotions may be triggered that are not easy to contain, and this can have
destructive social consequences. The emotions that commemorations tap
may be of the wrong sort, that is to say, wrong from the standpoint of
restorative justice, because they are obstacles to the establishment of
relations of respect and trust between those who have suffered from harm
and those who are responsible for or have beneted from it. Anger, for
example, may be hard to contain once aroused and be the wrong sort of
emotion to tap into because of this. Let me conclude this section with a
few words about these possibilities.
Jon Elster, in Closing the Books: Transitional Justice in Historical
Perspective, discusses various mechanisms by which the decay of
memory and emotion may be slowed down or even arrested altogether
(2004, 223). These include communication among the victims of wrongdoing, codes of honor that keep memory alive until the desire for revenge
has been satised, visible physical reminders of the wrongdoing, and
perpetuation of the state of affairs caused by the wrongdoing (223). I am
suggesting that commemorative ceremonies can be a mechanism of the
same sort, only for the purpose of promoting restorative justice and
maintaining its achievements, not keeping the desire for revenge alive. Yet
commemorative ceremonies can and often do function like codes of
honorconsider, for example, the annual march of the Orangemen in
Northern Ireland (Orangemen Web site) and the Serbian national holiday
of St. Vitus Day, which commemorates the Battle of Kosovo in 1389
(Kosovo Web site)so their reparative potential should not be exaggerated. The participants in commemorative ceremonies can be disposed to
have negative as well as positive emotions, and among the former, angry
feelings, such as resentment, hatred, and malice, and nonangry ones, like
disappointment, hurt, sorrow, and grief. Angry as well as nonangry
negative emotions can keep the memories of wrongdoing alive, can keep
them, as Elster puts it, from fading from Technicolor to black and
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white (219). But commemorative ceremonies are only useful in promoting the core values and aims of restorative justice if the feelings to which
its participants are disposed are largely of the nonangry sort. What
matters is not only that wrongdoing is remembered but also how, and
commemorations do not build relations of trust sufcient for sustainable
cooperation if the participants in them are chiey prone to angry or
vengeful feelings. In the latter case, a society in transition seeking to
emerge from a period of political repression or violent conict by
adopting a restorative justice approach might decide to ban such commemorations altogether. Or if not ban them, tightly regulate them in various
ways. In contrast, it may decide to permit, perhaps even encourage,
commemorative ceremonies that foster recognition of the centrality of the
victims suffering, reconciliation between victims and offenders, and reintegration of the offenders into their communities. Commemorative ceremonies that can do these things do not stir up vengeful negative emotions.
I have no particular wisdom to offer as to how commemorative
ceremonies can be effectively designed to (re)establish rather than undermine trusting relationships, or what steps political communities might
take to prevent regression to a state of affairs characterized by mistrust,
hostility, and resentment. These are matters of political judgment that
depend upon an understanding of what is feasible given the historical
situation and cultural context. Whats more, commemorative ceremonies,
I freely admit, can be used for good or ill. Political uses of commemorative ceremonies to sustain myths and to shape and control public
opinion in the pursuit of dubious and illegitimate state objectives are well
documented.23 I only suggest what commemorative ceremonies may be
able to do, on the assumptions that they are well designed, are not
dominated by emotions of anger and revenge, receive sufcient validation
and support from the community, and are not appropriated and exploited
for jingoistic political ends. Commemorative ceremonies that satisfy these
conditions, that elicit nonangry negative feelings and channel any
tendency to emotional excess, are not only consistent with but can further
the aims of restorative justice.
Commemorations are a second type of restorative justice practice in
which those who have been the victims of wrongdoing may continue to
harbor nonangry negative feelings in response it. The other is the one I
began with, apology and forgiveness, where, as we have seen, nonangry
negative emotions may remain even though retributive emotions have
been overcome. In both cases, moreover, the persistence of such negative
feelings is not merely a natural if regrettable fact of human psychology
but a morally valuable aspect of the response to wrongdoing.
23
Many have noted this about the political uses of memory. See, for example, Plumb
2004.
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Acknowledgments
I am grateful to Charles Griswold, Colleen Murphy, Ronald Salzberger,
and Margaret Walker for remarks on earlier drafts. A shortened version
of this article was read as part of a panel entitled Transitional Justice,
Reconciliation, Identity, and Memory at the Eastern Division Meeting
of the American Philosophical Association, December 28, 2009. I thank
members of the audience for their comments.
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