Dr. Jaime Malamud Goti is the former Solicitor General of Argentina. During his tenure, he was responsible for the trials of Argentine junta members for human rights violations against the people of Argentina. I have just read Dr. Malamud Goti 's essay A Turbulent Past and a Problem with Memory, published last year in Oxford's International Journal of Transitional Justice. He writes with beautiful honesty about blame, memory and justice-seeking. He says:
As much as I believe that some acts are unquestionably abominable, I reject the notion that they presuppose an evil agent, that is, some radically evil being who does terrible and causally inexplicable things to others....I do believe ... that the circumstances of a violent political conflict justify forgoing punishment, despite its strong communicative power concerning what is right and wrong. My stance is based on my endorsement of two central notions: what I label ‘rationality skepticism,’ which I have just sketched, and a very ample understanding of luck, which affects the way our plans arise and how our lives shake out.
Dr. Malamud Goti's essay is at one level an analysis of the different goals of a criminal prosecution versus a truth and reconciliation commission, and the necessary preconditions for the success of either project. At another level, the essay is a personal (and humane) rumination on human nature. We are all deeply flawed, and but for some "accidents" of circumstance, any one of us might be in the position of the accused wrongdoer or the alleged victim.
Might a truth-and-reconciliation approach work outside the transitional justice context? Is there a private law application for a similar framework? Imagine if Elizabeth Warren were the head of a Consumer Credit Truth and Reconciliation Commission, not an Assistant to the President and Special Advisor to the Secretary of the Treasury on the Consumer Financial Protection Bureau. How about a Truth and Reconciliation Committee for tax evaders? (As a tax lawyer, I can't see that one working very well.) Other suggestions?