Repenting, Repairing, and the Legal System

On the other side of self-reckoning, there is more distance from the day that we were our worst selves, and the genuine freedom to do better in the world.

“To put it bluntly, American society isn’t very good at doing the work of repentance or repair,” writes Danya Ruttenberg in her introduction to her book On Repentance and Repair: Making Amends in an Unapologetic World (3). And with that, she’s off to tackle an interesting hypothetical: what would it look like to do it better? She uses the framework of Maimonides, a 12th century Jewish philosopher, to discuss how true amends could be done. Contrary to popular intuition, this does not begin and end with an apology, but encompasses steps of naming the harm, change, restitution, and acceptance of consequences before even attempting to apologize. 

Ruttenberg explores ever-larger spheres where repair work needs to be done. She begins with personal relationships, extends to harm in the public sphere (especially the internet) and builds outwards to institutions, and even nations, looking specifically at the case of the Truth and Reconciliation Commission (TRC) in South Africa and Germany’s reparations for the Holocaust. Eventually, Ruttenberg turns her attention to issues of forgiveness and atonement, explaining why those are actually separate (albeit related) topics.

There’s all sorts of good stuff going on this book. There’s an amazing plethora of contemporary examples, which allows for plenty of intuition-building. A reader who takes in this book is going to march right out into the world with a more nuanced and grounded understanding of what it means to address harm, and that’s just going to make for a better world.

As I read it, there were a couple of nuggets that suggested themselves as being worthy of even more consideration than the scope of the book. One of them lies in the account of South Africa’s Truth and Reconciliation Commission (TRC) at the end of apartheid. Apparently, (I didn’t know this before) they made the difficult decision to trade absolution for truth-telling. In other words, in order to encourage criminals to expansively “own” the crimes they committed, they promised not to prosecute in exchange for this publicized (televised) telling-on-oneself. You can probably see why this is controversial— it looks like countless opportunities to get away with murder. But it facilitated, as Ruttenberg puts it, “a kind of healing that might not have been possible had the TRC chosen more conventional models of punitive justice” (119). Victims were able to hear an account from the perpetrators which offered them the narrative that they were indeed harmed, and that it was wrong.

Leaving aside the imperfections of that system, I think it’s worth putting this choice up against her next chapter that discusses the American justice system, and the tradeoffs between confessions and punishment. I’ve long thought about how our system of “justice” does not allow for forthright communication, even when that is all the victim — and sometimes the perpetrator— seem to desire. I remember once reading about a case of medical malpractice. The victim had suffered; more than anything, she wanted the doctor to acknowledge her pain and apologize. The doctor recognized his mistake; he wanted to explain what had happened, and express his regret for the profound way his error had impacted her life. But there were lawyers and insurance agents and hospitals involved — and their counsel and interests superseded those of both the victim and harm-er. Those interests insisted the doctor not make a statement, lest it implicate him or the hospital and leave them financially vulnerable. Ever more desperate for resolution, the victim sued— over and over— trying to force not a financial settlement but an apology.

Reading this, the whole thing seemed tragic. It’s hard not to dislike lawyers and the legal system when it looks like if the whole lot of them would just clear out, two people could have sat in a room together and cried and the whole thing could have been just better enough that they could have gotten on with their lives. Instead, years were spent in misdirection, shame, isolation, and financial loss with some lawyers minimizing the harm for effect, and others exaggerating the harm for effect. Meanwhile, the harms kept compounding as resolution became ever more elusive. 

I recently read a book on just this sort of frustration with the legal system, called Why the Law is So Perverse by legal scholar Leo Katz. One of the questions he considers seems particularly on point here. He asks, “Why does the Law Spurn Win-Win Transactions?” And then— he answers it. According to Katz, (and to simplify a bit), it’s not necessarily the case that the law doesn’t like win-win scenarios, but only that there are a lot of principles that the law holds dear, and putting win-win higher up means we have to give up on other principles that are also important. At some point, I’ll have to give full shrift to this argument itself, because it’s such a beautiful example of philosophy and theory meeting practical experience, and Katz renders the dilemmas with such accessible and intuitive examples, and the whole book is both elegant and provocative.  

But I’ll just turn back to Ruttenberg’s book because she specifically mentions a win-win of amends that the law spurns in her world: restorative justice. The carceral system is horrifically bad at a lot of things— including, but not limited to, racial equity, rehabilitation, and making society safer. But Ruttenberg points out that it also stands in the way of actual repentance and repair. “The system as it stands now does not, apparently, want the repentance work of incarcerated or formerly incarcerated people… Critically, the system as it exists also doesn’t serve the needs of victims” (148).

This seems ludicrous. Who is the system for then? I guess what I had heard before is that the punitive aspect of the carceral system is so important— Americans just want a kind of revenge for crimes, to make someone “pay”— that they are unwilling to let the system be more flexible, even if it would also be more effective. But maybe that isn’t it. After reading Katz’s book, I wonder if we can’t identify some other reasons— what is it that we’d be giving up (other than vengeance) if we adopted more win-win scenarios in criminal justice? 

But of course, thinking through hypotheticals is different than the work at hand. Most of us don’t have criminal justice systems, lawyers, and threats standing in our way of genuine transformation and apology. What we do have is hard work. And I have to say: this book eases the way— not only by offering a roadmap, but inspiration. On the other side of our self-reckoning, there is more distance from the day that we were our worst selves, and the genuine freedom to do better in the world. If that isn’t inspiration to do good, I don’t know what else is. 

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