Inga N. Laurent (Gonzaga University School of Law) has posted Restorative Reparatory Justice (Nebraska Law Review) on SSRN. Here is the abstract:
As global calls for reparatory justice—aimed at addressing “historical” and ongoing harms stemming from genocide, dispossession, assimilation, and enslavement—grow, this Article explores critical challenges in designing transformative processes of reparation. While a host of transitional justice mechanisms, such as reparations, tribunals, and truth and reconciliation processes are at the forefront of these discussions, a critical examination of their limitations will provide the groundwork for their enhancement. Past applications of transitional justice mechanisms have frequently failed to address root causes of violence, which reinforces State power despite its failures to protect its citizens from that violence, causing secondary harm to survivors/ victims. Recognizing the need for a pluralistic strategy in the global pursuit of reparatory justice, this Article affirms the value of existing mechanisms, such as monetary redress and redistribution. However, it rejects their use as the dominant pathway to meaningful individual and societal transformation. Oppressive tools for “past” and continued subordination are insidious, slippery, and capable of reconstitution without constructive interventions. Interdisciplinary research reveals the emerging truth of the lesson we are colloquially coming to understand: where facts often fail to change people’s minds, stories can open them. The “magic” of restorative dialogue rests with its ability to re-story while affirming the dignity of all participants—it can completely unearth and reshape entrenched paradigms, like the twin myths and determinants of opposition to reparatory justice—namely viewing people as “undeserving” and historicizing problems as solely “past.” Chattel enslavement morphed into Jim Crow laws that morphed into State hyper surveillance, producing mass-incarceration for Black Americans. Respectively for Indigenous peoples, manifest destiny morphed into assimilationist strategies of relocation and boarding schools to destroy lineages—families, culture, and language loss—which morphed into the epidemic of missing and murdered Indigenous people. The insidious harm of supremacist and extractive ideologies does not dissipate but merely transmutes without intersession. Societies must transform to transcend their past. Contemporizing age-old societal ills so people can feel and comprehend how those burdens continue to be carried is essential to creating buy-in for reparatory programs. Creating constructive responses to those now contemporized problems demands solutions that move beyond solely seeking monetary redress. This Article posits that supplementing the transitional justice paradigm through implementation of restorative praxis deepens meaningful accountability through both recompense and heightened relational equality. Additionally, an ancillary potential byproduct of augmenting restorative praxis—a mode of direct conflict ownership— results in participants who improve their democratic competencies. We all benefit when communities stop abdicating responsibility, exercise augmented agency, and see themselves as having an active role within the collective.
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