When Should Law Forgive? by Martha Minow

Author:Martha Minow
Language: eng
Format: epub
Tags: Epub3
Publisher: W. W. Norton & Company

THE NATION OF BHUTAN—which originated the concept of Gross National Happiness—recently opened its first law school.31 As it teaches future lawyers, the law school prepares students to handle disputes in a formal court system founded on rights and adversarial views, as well as dispute resolution through village elders, which is predicated on conciliation to maintain social harmony.32 Professor Stephen Sonnenberg decided to begin the first contracts class at the new school with:

a series of preliminary in-depth interviews with village elders before diving into the more standard contracts classroom doctrine. We then spent a fair amount of the remaining semester comparing “formal” doctrine with what we found in the field. One of the major take-aways in that comparison between contract law doctrine on paper, and contract law as practiced in customary [settings] was the loss of the forgiveness element in how people thought about contractual remedies. It was fascinating to hear elder testimony about the rigidity (and injustice) of the modern legal system, as opposed to their more traditional approach.33

Further study can illuminate whether the traditional approaches burdened some, such as women, more than others, and whether the modern system can make room for traditional elements of forgiveness.

Cultural practices and religious traditions contributed to the resonance of forgiveness at South Africa’s Truth and Reconciliation Commission. Victims decided for themselves whether to forgive perpetrators, who applied for amnesty by providing full disclosure of their actions; some felt pressured to forgive; others found it helpful to hear what had happened to their loved ones. TRC chair Archbishop Desmond Tutu drew upon both Christian and traditional African notions of forgiveness and social repair, but not everyone in South Africa shared his commitment to social reconciliation.34 The psychologist Pumla Gobodo-Madikizela, who worked with the TRC, before becoming a university professor, reported that Eugene de Kock, former chief of the death squad, asked to meet with the widows of two black policemen he had killed with a bomb. At the meeting, he apologized. One widow, Mrs. Pearl Faku, later recalled:

I couldn’t control my tears. I could hear him but I was overwhelmed by emotion, and I was just nodding as a way of saying yes, I forgive you. I hope that when he sees our tears he knows that they are not only tears for our husbands, but tears for him as well. . . . I would like to hold him by the hand and show there is a future, and that he can still change.35

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