Toward a Theory of Transitional Justice

CHAPTER SEVEN
Toward a Theory of Transitional Justice

This book has explored two questions: What legal approaches do societies in transition adopt in responding to their legacies of repression? and What is the significance of these legal responses for these societies’ liberalizing prospects? We are now in a position to examine what light Transitional Justice sheds on these questions and, more generally, on law’s role in periods of far-reaching political change. In exploring states’ legal responses to their illiberal legacies, Transitional Justice pursues an interpretative, historical, and comparative method in order to draw synthetic conclusions concerning what these practices convey about the conception of justice at such times. What emerges is a pragmatic balancing of ideal justice with political realism that instantiates a symbolic rule of law capable of constructing liberalizing change. This concluding chapter thus analyzes the legal phenomena discussed throughout this book in terms of a theory of transitional justice that bridges ideal conceptions of the rule of law and the contingent political exigencies of particular cases.

Legal measures during such periods follow a distinctive paradigm, guided by rule-of-law principles tailored to the goal of political transformation. The analysis undertaken in this book demonstrates the conceptual and practical channels through which an extraordinary paradigm of transformative law helps to construct liberalizing change. But it also goes further, arguing that law maintains an independent potential for effecting transformative politics. The various legal responses explored in the preceding chapters reveal common features in their nature and functions—and thus ramifications for an analytically coherent conception of transitional justice that transcends particular cases. Transitional justice’s paradigmatic rule-of-law principles are intimately related to these periods’ quintessential and defining feature, namely the grounding within society of a normative shift in the principles underlying and legitimating the exercise of state power. Accordingly, the understanding of transitional justice advanced here should have import beyond periods of political flux, shedding new light on contemporary questions concerning human rights law’s potential for responding to international conflict, and core understandings of the relation politics bears to justice.

This book’s exploration of the nature and function of law in transformative periods began by shifting the terms of debate and the relevant frame of reference, for transitional justice is not adequately captured within prevailing analytical frameworks used to examine law’s role in periods of liberalizing political change. These accounts tend to be highly antinomic. They are either radically realist, with the course of developments in the transition simply following the balance of power (and thus denying law any independent significance in political transformation), or they offer idealized narratives in which law operates as an entirely self-enclosed inaugural and foundational force, implying a potentially universal sequence of legal and political development during transformative periods.1 Neither of these profoundly dichotomized understandings provides a persuasive positive or normative account of law’s role in periods of substantial political change. Drawing on a historical and comparative perspective across societies, the analysis pursued here argues for an alternative way of conceptualizing law’s role at such times.

Consider, for a start, the prevailing scholarship’s implicit conceptualization of the relevant subject matter: Law’s role is either simply reduced to the balance of political forces that shape the onset of regime change or extrapolated from the end point at which “liberal revolution” putatively aims.² As a result, law’s role in the salient period—understood in political terms to correspond to an interregnum, that is, to a period between regimes³—has eluded understanding, for each of these approaches by definition excludes the phenomenology of law in liberalization as a discrete subject of analysis.

This analysis is by no means to deny or minimize the importance of structural constraints and normative goals in shaping legal processes and political outcomes. On the contrary, legal phenomena are obviously never either autonomous of their context or purely responsive to it. Why, then, is there any reason to assume, as each of the prevailing approaches does, that law’s operation is any less interactive and dialectical during periods of far-reaching political change? Indeed, a systematic analysis of the legal processes occurring during the passage from one political regime to another is precisely what is required in order to clarify the nature and extent of their role in the transitional period. Rather than our simply describing outcomes as a mere residuum of the balance of political forces or deducing ideal legal responses from a revolutionary end point that presupposes democracy and the rule of law, it is necessary for us to examine transitional legal responses’ relation to societies’ historical legacies of injustice and the extent to which this relation shapes their paths to liberalization. The usefulness of this approach will become more apparent as we turn to a discussion of the legal phenomenology and applicable rule-of-law principles that are characteristic of contemporary instances of radical political transformation.

Transitional Justice and Transitional Jurisprudence: A Paradigm

Law in periods of radical upheaval is commonly conceived as antistructural, as eluding principle and defying paradigm.4 The period of normative shift is commonly thought to be antiparadigmatic. Yet, the legal phenomenology that characterizes periods of political flux reveal patterns pointing to a paradigm. As we have seen, the manifestations of justice seeking during transformative periods are diverse: retributive, reparatory, bureaucratic, constitutional, and historical. Nevertheless, across diverse legal responses, regularities become evident, revealing the distinctive processes associated with political change. Across legal categories, a paradigm of law emerges—a transitional jurisprudence.

Because transitions’ defining feature is their normative shift, legal practices bridge a persistent struggle between two points: adherence to established convention and radical transformation. Ultimately, a dialectically induced position emerges. In contexts of political upheaval, transitional jurisprudence comprises a partial and nonideal conception of justice: provisional and limited forms of constitutions, sanctions, reparations, purges, and histories. Across categories of law, a distinctive legal form mediates the move between regimes. Law’s role here is transitional, and not foundational, constructive of critical changes in individual status, rights, and responsibilities—and, more broadly, of shifts in power relations. As law’s function is to advance the construction of political change, transitional legal manifestations are more vividly affected by political values in regimes in transition than they are in states where the rule of law is firmly established. Thus, the jurisprudence of these periods does not follow such core principles of legality as regularity, generality, and prospectivity—the very essence of the rule of law in ordinary times.⁵ While the rule of law in established democracies is forward-looking and continuous in its directionality, law in transitional periods is both backward-looking and forward-looking, retrospective and prospective, continuous and discontinuous.

Ordinarily, the values of prospectivity and continuity, as well as general applicability and equal protection, are thought to be fully compatible in established legal systems. However, in periods of substantial political flux, these values are vividly seen to be in conflict. This was manifestly apparent in both the immediate postwar period and following the Communist collapse in jurisprudential debates over the relation of law and morals and over the meaning of the restoration of the rule of law. The struggle is over the extent to which preexisting procedures are adhered to or new regime values are advanced. Which rule-of-law values ultimately take precedence in transition is a function of the particular historical and political legacies—that is, of the primary understanding of the sources of fear, insecurity, and injustice that gains authoritative normative force in the society. While the balance of power between key political actors may be viewed as constraining the range of possibilities, the profound challenge and distinctive role of transitional jurisprudence remains to somehow bridge conventional legality and the normative shift entailed by liberalizing transformation.

In periods of political change, there is no singular site of operative legal action, and there are no seamless foundational ideals. Nevertheless, transitional experiences do not necessarily follow the course postulated by political realists on the basis of balance-of-power considerations. Instead, the salient question is, What institution has the legitimacy to carry out substantial normative transformation? As is discussed in preceding chapters, the role of reinterpreting the meaning of the rule of law in periods of substantial transformation is frequently assumed by constitutional courts, particularly when they are entirely new institutions brought into existence by the transition itself. The transitional judiciary exercises considerable interpretative freedom, crafting a nuanced rule of law that simultaneously adheres to aspects of conventional legality while doing the work of normative change. Thus, adjudication in these periods typically reveals a dynamic combination of conventional and transformative imperatives. Though not acts of political decision-making bodies, these adjudicatory responses, nevertheless, constitute significant symbols of the liberalizing rule of law. When the constitutional courts predate the transition, other institutions imbued with newfound legitimacy and authority, such as public commissions, become the sites of transformative practice.

For example, establishment of the rule of law within a liberalizing state is often considered to depend on exercises of individual accountability. Thus, punishment most clearly instantiates the concern with individual responsibility central to law within the liberal state. Yet, as chapter 2 demonstrates, this perspective on the nature of punishment does not accord with its role in times of radical political flux. The transitional criminal form is instead informed by values related to the distinctive circumstances and project of political passage. Criminal justice is ordinarily theorized in starkly dichotomous terms as animated by either a backward-looking concern with retribution or a forward-looking, utilitarian concern with deterrence, considered internal to the justice system.6 In its transitional variant, however, not only is punishment informed by a mix of retrospective and prospective purposes, but also the question of whether to punish or to amnesty, to exercise or restrain criminal justice is rationalized in overtly political terms. Values of mercy and reconciliation commonly considered to be external to criminal justice are an explicit part of the transitional deliberation. The explicit politicization of criminal law in these periods challenges ideal understandings of justice and turns out to be a persistent feature of jurisprudence in the transitional context.

The extraordinary transitional form of punishment characterized in chapter 2 as the “limited” criminal sanction is directed less at penalizing perpetrators than at advancing the political transformation’s normative shift. The transitional limited sanction is exemplified wherever criminal processes are partial and truncated and ultimately culminate in little or no penalty. The limited sanction is well illustrated historically, not only in postwar policy, but also in the course of punishment following more recent cases of regime change, during which the limited sanction performs important operative acts—formal public inquiry into and clarification of the past, the indictment of past wrongdoing, and so forth—advancing the normative shift central to liberalizing transition. Even its arch limited form is a symbol of rule of law that enables expression of a critical normative message.

In terms of the argument advanced here, it is especially important to note the affinities that the operative effects advanced by the limited criminal sanction, such as establishing, recording, and condemning past wrongdoing, display with other legal acts and processes constructive of transition. The massive and systemic wrongdoing that is particularly characteristic of modern repression implies a recognition of the mix of individual and collective responsibility. Hence, there is a pronounced overlap of punitive and administrative institutions and processes. Individualized processes of accountability give way to administrative investigations and commissions of inquiry, the compilation of public records, and official pronouncements about past wrongs. Frequently, these are themselves subsumed in state histories commissioned pursuant to a political mandate for reconciliation, as in South Africa and in much of postauthoritarian Latin America.⁷ Whether bureaucratic forms of public inquiry and official truth-tellings are desirable and signify liberalization is contingent on state legacies of repressive rule. The role of the production of social knowledge regarding a state’s past is no original or foundational matter, for successor truth regimes’ critical function is to respond to the repressive practices of the prior regime. Thus, for example, in transitions after military rule, when the truth was a casualty of disappearance policies,⁸ the critical response is the concerted pursuit of an official story, whereas state histories have been largely eschewed in the postcommunist transitions, as their production was itself an instrument of repressive control. Transitional historical inquiries reveal that the relevant truths are those that are implicated in a particular state’s legacies of injustice. These are not universal, essential, or metatruths. As is demonstrated by the generalized transitional use of independent accounts in contemporary human rights law to dislodge the predecessor truth regime and establish a primary form of accountability, a marginal truth may be all that is needed to draw a line on the prior regime.9

New historical accounts about past legacies rehabilitate, as well as condemn, particular individuals. In its transitional form, the reparatory remedy does important work of the normative shift by instantiating changes regarding political status, for example, the rehabilitation and restoration of individual dignity associated with liberalism, which may accompany other legal remedies of a distributive nature. Across cultures, the call for reparatory measures as a display of equal protection under the law is pervasive, spurring changes in rules relating to individual status and rights. In ideal theory, principles of corrective justice are largely backward-looking, relating chiefly to individual victims’ due. In their transitional form, however, reparatory measures have a “hybrid” nature, with corrective goals linked to broader societal concerns related to the normative entrenchment of liberalizing political change. The transitional reparatory project’s hybrid combination of backward- and forward-looking purposes is most evident in countries undergoing simultaneous political and economic transitions, departing radically from ideal theorizing about principles of distributive and corrective justice.¹⁰ The transitional compromise is thus most vivid in the postcommunist transitions, when even so-called first property rights were not structured on an ideal basis.¹¹ Transitional reparatory remedies advance “entitlements” that seek to correct violations of rights in the past precisely in order to embed them simultaneously in the future. Once again, through broad legislative projects, often broadened or amended by the judiciary, the liberalizing state adopts a form of systemic repair for past systemic derogations from equal protection of the law.