Administrative Justice

Administrative Justice

This chapter turns to where the law itself is the engine of revolutionary change. In negotiated political transitions, the transformation often depends on the force of law. Politicized public law can effect radical change when it distributes power explicitly on the basis of the new ideology. Sweeping politicized administrative measures have been pervasive in periods of political change worldwide: after the American Civil War, in the shift from slave to free state; in postwar Europe, in the shift from fascism to democracy; in postcommunist Europe, in the shift from totalitarian to freer market economies; in postmilitary Latin America, in the shift to civilian rule. The asserted purpose of the politicized exercise of administrative law is always the noble one of guarding the transition; nevertheless, this use of the law, grounded as it is in categorical judgment, resembles the political justice of totalitarian regimes. Such measures raise the question, What is the relation of illiberal means to liberal ends? Where an illiberal ideology has permeated society, what is the hope for moving that society toward a more liberal political system? What is the potential for revolution by law? To what extent do transitional societies rely on past political behavior as the basis for transformation? What if any are the normative parameters? What justifies the overtly political measures? How can the successor regime’s interest be reconciled with concerns for individual rights? The inevitable dilemma is one of means and ends. Is transitional administrative justice a necessary evil on the road to societal transformation?

The core dilemma is eloquently captured in an exchange between Arthur Koestler and Maurice Merleau-Ponty about the Stalinist purges. In their argument, Koestler and Merleau-Ponty invoke the figures of the “commissar” and the “yogi” to represent opposing sides: The commissar defends political purges because he believes in revolution and that “the end justifies the use of all means;” the yogi opposes the purges because he believes in the impossibility of revolutionary change, which leads him to conclude that since “the end is unpredictable, … the means alone count.”1 It is this question, What are the uses and justifications for explicitly political measures adopted in periods of radical political change? This is the subject of this chapter.

After repressive rule, a central question is, What is the relation of an evil regime to its subjects? Revolution implies change at the top; nevertheless, to effect substantial political change, mere personnel change at the highest echelon is often not enough, and transitional societies rely on administrative measures broadly to redistribute power among classes of citizens. How do societies undergoing massive transformation reason about the uses of political class-based measures? Our intuitions are to conceptualize such measures in sharply antinomic fashion: as retrospective punishment versus prospective conditions on the political order. These transitional administrative measures appear paradoxical, defying intuitions premised on law in ordinary times. In some sense, the measures seem forward-looking, intended to effect political transformation. In another sense, however, transitional administrative measures appear backward-looking, like punitive sanctions. In their backward-looking features, these responses resemble criminal justice; whereas in their forward-looking features, the measures are sweeping attempts to shape the political community, institutions, and processes, and in this way administrative justice resembles constitutional measures.

Related to the tension of their simultaneous backward-and forward-looking nature is the way the subjects of regulation are both the individual and the collective. Criminal justice primarily seeks to establish individual responsibility for wrongdoing, but the tyranny of the modern bureaucratic state diffuses responsibility throughout the polity; thus the ordinary workings of criminal justice are inapposite, particularly when those implicated in prior repression go not only unpunished but also on to positions of power under the new regime. Whereas criminal sanctions are generally predicated on individual wrongdoing, civil sanctions of an administrative nature are based on exclusionary conditions, chiefly of political loyalty, systematically disqualifying entire classes from participation in the new government.

The categorical judgments that recur over and over in these transitional measures assume a harsh form: a negative politics of exclusion, evocative of the political theory of Thomas Hobbes, later more pronounced in the writing of Carl Schmitt, where “political actions and motives can be reduced [to] that between friend and enemy.”2 A politicized public law easily instantiates a new political regime, as it demonstrably shifts the site of the sovereign constitutive power.

Collective responses of an ideological nature are inextricably bound up in the politics of transformation. The dilemmas of administrative justice are illustrated in experiences spanning ancient times, post–Civil War United States, postwar Europe, postmilitary Americas, and contemporary decommunization in the former Soviet bloc. The measures illustrate that practical resolutions at the juncture of law and politics are elaborated in periods of upheaval. Considered together, common processes and justifications reveal how the forms of these measures are not dichotomous, at war with their purposes but intimately bound up in their transformative purposes. Exploration of these historical instances below illustrate these practices’ role in the radical work of transformation.

Sodom and Gomorrah: The Purges of the Evil Cities

The central question pursued in this chapter concerns the relation of the individual to the political collective and how the relation is normatively reconceived and restructured in times of radical political transformation. Going back to ancient times, this question is understood to be central to the possibility for political change. It appears in the biblical account of the famous dialogue over the proposed destruction of Sodom and Gomorrah, two ancient cities said to be corrupt.3 The cities mistreated alien visitors by a range of offenses—from the absence of hospitality owed visitors to the far more heinous offense of rape. After these atrocities were committed, the questions were, What response is appropriate? and, Should the cities be destroyed for their sins? The dilemma was whether to destroy the cities, if it would mean destroying righteous persons along with the wicked. The central questions were, What is the relation that the citizens bear to the political identity of the city? and, At what point does the existence of virtuous citizens affect the identity of the city?

The biblical story suggests nuanced, textured relations between the political identities of the cities and that of its citizens, between the individual and the collective. The city cannot be saved by the existence of merely one virtuous person. In the ensuing negotiations, the number of righteous necessary to save the city beginning with fifty, “If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes,” is argued down to ten, “I will not destroy, for the sake of the ten.”4 There is a turning point in the relation between the identity of the individual and that of the city that stakes out a threshold for the identity of the political collective.

Moreover, is the mere existence of some good persons enough? Saving the city raises a question not just about sufficient numbers of good men but about what it takes to constitute a political community. The account says that virtuous persons need be found “within the city,” understood to mean that they must participate in the public sphere.5 In the city worth saving, there are at least ten citizens making up a politically participatory community. Indeed, this understanding of political virtue as implying a predicate of participation in public life is borne out in later political (Aristotelian) theory. The message of what constitutes community as a normative matter is reinforced elsewhere in the biblical story. Beyond this question is that of the appropriate relation of the individual to the collective, established in the redefinition of political affiliation in terms of threshold membership and participation. The sins committed by the corrupt cities are in and of themselves relevant to a perversion of community, for they have violated basic principles of social justice involving the mistreatment of aliens. Going back to ancient times, foreign civilians falling outside the political community are nevertheless owed, as a normative matter, a threshold level of protective treatment across national lines. The question of what response is owed—to the persecution of outsiders, outside the community’s protection of the law—becomes a trope that resonates from ancient times up to the modern period.

In the biblical account, the cities’ legitimacy is a matter to be established. The cities are ultimately destroyed but not sight unseen. “The outrage of Sodom and Gomorrah is so great, and their sin so grave! I will go down to see.”6 Even when one might have assumed omniscience, there is investigation. Political truth, that is, loyalty, is a matter that is established in public processes, in its circumstances and over time. As in this ancient illustration, it is these processes of “evaluation” that comprise administrative justice, epitomized in more contemporary political rituals of lustration, discussed later in this chapter.

Though liberal intuitions emphasize the significance of individual action, the predicate for change to a civil society as suggested in the ancient account is not simply an individual matter but involves a relation between individual and collective. The biblical purges of the evil cities suggest that the polity’s identity is predicated on the notion of a threshold political collective. There is also the relation of the cities’ past to their future: The cities’ past evil legacies have profound implications as their legacy is fateful for their political future. The verdict is radical and absolute. Because of their evil past, the cities have no future. Political transformation is necessary to political survival, and, despite liberal intuitions that are often construed to privilege the role of the individual, the project of political transformation is predicated on the existence of a participatory body. The ancient biblical purges of the corrupt cities is an early instance of the role of collective sanctions in political transition. Ultimately the biblical purges illustrate the boundedness of and limits on the possibility of change.

Reconstructing America

Perhaps the greatest experiment in the reconstruction of political identity through the public law occurs in the nineteenth century. It is of particular relevance because it illuminates both the role of ongoing political conflict over the scope of political change and the sort of constraints placed on overtly political measures applied in a constitutional democracy.

After the American Civil War, the period known as Reconstruction was a time of national struggle over the transformation of the Union. The period presented the dilemma of how to respond to an agonizing, bloody conflict and a bitter time in the country’s history, when political differences were resolved outside the Constitution. It is this illegality—the extraconstitutional nature of the Civil War—that was the Reconstruction’s point of departure. If the Civil War and the Confederate secession were conceptualized to have occurred outside the law, the question became how to characterize the South’s broken allegiance. How was the Union wronged? By the “rebel” states, as states, or by their constituent members, as “rebel” citizens? And, whether by individuals or states, what did Reconstruction imply? It implied more than restoration—to “reconstruct” meant greater political change. It raised the question of what ought to be the new relation between the Union’s past and its future, rebel states and citizens. Reconstruction illuminates the possible restructurings of individual, citizen, and state, in radical political upheaval.

To what extent could rebel states become full and equal participants in the new Union? Should past political loyalty be relevant to future political representation in the Union? Should the rebel states, and their citizens, be considered treasonous and criminal? And, despite their wartime criminal status, would Confederates and sympathizers be restored? Criminal measures were largely eschewed, other than the prosecutions of Confederate leader Jefferson Davis and Captain Henry Wirz, chief of Andersonville prison camp. Could a democratic Union, nevertheless, be forged by unreconstructed Confederates? Even if one might imagine reconstitution with Confederate supporters, at the very least, a line would be drawn at the top echelon predicated on change in southern leadership and representation. Post–Civil War America reveals the profound struggle over how to respond to disloyalty and how to secure fidelity to a newly unified national government.

The foundation of Reconstruction policy was the secession and its illegality. As a threshold political and juridical parameter, new constitutional amendments were passed declaring the illegality of the secession. The secession’s illegality implied legal discontinuity between regimes, the Confederacy and the Union. This illegality was made explicit in a constitutional provision repudiating responsibility for the debts incurred by the rebel states during the war.7 Even if it was beyond debate that the Confederacy had been destroyed as a legal entity, the seceding states persisted as political and juridical entities, raising the questions of how their rights would be restored and how they would be reincorporated into the Union. In the reconstituted Union, sweeping public measures placed political disabilities on the Confederate states and their citizens, redefining the political parameters of the Union largely through constitutional law.8

Throughout Reconstruction, ever present were the seemingly paralleling questions about how to treat the rebel states and their citizens and what transitional policy guided this relation. American Reconstruction implied a change in the relations of the individual and the collective, the citizen and the state. Indeed, the displacement of the slave regime and the consolidation of the republic depended on a restructuring of the relation. Throughout history, test oaths have been used to help consolidate a fragile and divided political community. The more fractured the polity, the greater the pressure to unify. In the lenient form of Reconstruction policy advocated by then-President Abraham Lincoln, prospective oaths were imposed on prior Confederate supporters only to secure their future allegiance to the Union. Moreover, Lincoln’s proposed loyalty oaths, would have been universally applicable, intended as public acts of consent to the new government, as constitutive oaths of allegiance.9 Such oaths harked back to the earlier transition from England, whereby the American Constitution provides for oaths to the Constitution by individuals as predicates to their holding public office, representing the reconstruction of allegiance from a faraway king to a constitution. Whenever 10 percent of a Confederate state agreed to take an oath of allegiance to the United States, the new state government would be recognized, and pardons and property restitution would follow. Lincoln’s loyalty oaths were intended to enable transformation from rebel states to the legally restored southern states, but the plan was short-lived, and another more punitive policy followed.

Reconstruction policy predicated on constitutional conditions in the Fourteenth Amendment was largely prospective in nature; the conditions placed on the southern states and their citizens for reentry to the Union implied a broad commitment to a core principle of equality under law. Rehabilitation of states was conditioned on compliance with the Fourteenth and Fifteenth Amendments, and terms ratified by state legislatures before eligibility for congressional representation in the Union.10 Similarly, constitutional conditions disqualified from public office anyone who had previously broken his oath to support the Constitution, by engaging in rebellion. The legislative history makes clear that the constitutional disabilities were intended to exclude former Confederate leadership and others from public office.

No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.11

These constitutional disabilities were given force by the enactment of “ironclad” oaths, whereby deponents would attest to past allegiance to the Union as a condition for future public service. With rehabilitation predicated on these ironclad oaths, the country’s political identity was defined chiefly in response to the former regime. While Lincoln’s loyalty oaths were affirmative expressions of forward-looking future allegiance, the so-called ironclad oaths were just the reverse, backward-looking expressions of renunciation. Like ancient canonical oaths,12 the ironclad oaths served as tests of political truth, employed to clear persons of a charge or suspicion of guilt by assertion on oath. Despite the ironclad oaths’ harshness, the Reconstruction amendments’ constitutional language reflects deep ambivalence about their imposition. Unlike other constitutional provisions that are apparently self-enforcing, operation of the political disabilities is predicated on the existence of an ongoing political consensus. Even more telling, in the constitutional amendments, Congress is explicitly given power to remove the constitutional disabilities,13 suggesting the Reconstruction amendments lacked the usual constitutional status and, instead, always were considered provisional measures—to last only as long as deemed politically necessary.

Reconstruction’s political disabilities were ultimately short-lived. Over a period of years, Congress regularly exercised its removal powers, enacting amnesty legislation, steadily lifting disabilities.14 In the Forty-second Congress, the disabilities were refined to exclude only a higher political echelon. In 1872, at the urging of then—President Ulysses Grant, Congress exempted everyone from the constitutional disabilities except top political officers, such as congressional representatives and federal judges. Finally, in 1878, six years after their enactment, even these limited disabilities were removed, leaving only the constitutional disenfranchisement provisions. Nevertheless, the constitutional disabilities continued to operate as warnings, as de facto disqualifications from public employ on a political basis. Reconstruction-era political disabilities remained forever in the text of the American Constitution, where they stand as an enduring expression of the historical politics that shaped the identity of the American Union.

Reconstruction policy was controversial for its basic realigning of federal-state relations, which accordingly would be challenged in the courts. The constitutional question at issue concerned what principles governed relations between the federal and state governments, governments and citizens. In a federal system, what government has the authority to determine the status and rights of citizens, and to whom do citizens owe their allegiance? Moreover, what bearing did these questions have for the reconstitution of the states’ political identity?

In its review, the United States Supreme Court generally deferred to the political branches and their Reconstruction agenda. In Mississippi v. Johnson, Georgia v. Stanton, and Texas v. White, cases involving challenges by secessionist states to new governmental limits, the Supreme Court affirmed Reconstruction policy.15 The constitutional guarantee of a “republican” form of government was held a political obligation that formed the basis for Reconstruction legislation. Generally upholding policy transformative of the Union’s federal-state balance of power, the Court also reaffirmed the role of the political branches by allowing Congress to control access to judicial review on Reconstruction issues through its constitutional removal powers.16 While largely deferential to Congress, the Court nevertheless drew the line on Reconstruction policy in some instances. Despite congressional attempts to extend postwar military justice, the Supreme Court insisted on access to peacetime courts and due process.17 In the so-called test oath cases, Ex Parte Garland and Cummings v. Missouri, decided in 1866, the Court considered and struck down the constitutionality of political disabilities on Confederate sympathizers. Ex parte Garland concerned the constitutionality of the congressional ironclad oaths, challenged by an attorney precluded from taking the oath because he was an officer of the court in Arkansas, a Confederate state. The oath’s impact was to exclude him from the practice of law because of past status.18 A companion case, Cummings v. Missouri, concerned a challenge to a similar oath imposed under a state constitution. As a condition of eligibility to vote in the state, as well as of holding public office, teaching, and engaging in other professions, including the priesthood, the Missouri State Constitution required affiants to attest to whether they had ever been “in armed hostility to the United States” or “had ever, by act or word manifested … adherence to the cause of [its] enemies.”19

In Garland and Cummings, a divided Court struck down the Reconstruction-era oaths, holding that despite their superficial resemblance to civil sanctions, in effect, these constituted impermissible punishment. The relevant question of whether the test oaths could be considered valid qualifications to public employ, the Court said, depended on the nature of the connection between the relevant conduct and the affected employment, that is the strength of the relation between the legislative means and the asserted ends. Pursuing this inquiry, the oaths’ sweeping breadth, the Court held, belied the asserted governmental purpose of assuring loyalty to the Union. The imposition of political conditionality was deemed, in effect, to be a punitive policy. Thus, despite the oaths’ civil form, the deprivation of rights previously enjoyed constituted punishment. Blanket disabilities without a more specific connection to the organization’s unlawful purposes posed an unconstitutional burden on freedom of association. Freedoms of speech and rights were at issue as well as whether there was a sufficiently direct nexus between the political disqualification and the conditioned employment. Rejecting the government’s asserted Reconstruction-related purposes, the Court said that, as a constitutional matter, such measures could not simply be rationalized in terms of the transformation.

The post–Civil War disabilities hardly comport with our intuitions about punishment in ordinary times: Indeed, constitutional interpretation of the Reconstruction-era measures was guided by other transitional precedents deriving from other periods of radical political change in Anglo-American history. Reconstruction-era laws were analogous to those forbidden by the Constitution’s “bill of attainder” clause. Like bills of attainder, Reconstruction-era oaths were considered to constitute punishment inflicted without the usual judicial process. The absence of judicial processes ordinarily associated with punishment, such as protection against retroactivity, rendered the oaths unconstitutional. Throughout Anglo-American history, similar measures had been imposed, first, by the English Parliament in periods of monarchical excess and, again, by the states after the Revolution. What characterized the measures was that they were legislatively imposed, politically based deprivations. Throughout history, such legislative sanctions were traditionally used to repress the political opposition. As the Court observed, these were “[m]ost usually passed in England in times of rebellion, or gross subserviency to the crown, or of violent political excitements; periods, in which all nations are most liable … to forget their duties, and to trample upon the rights and liberties of others.”20 Whereas English bills of attainder lacked transformative justification, Reconstruction’s political disabilities might have been so justified and yet, nevertheless, were held impermissible legislative punishment, despite the existence of transformative rationale.21

Today, the conventional understanding of Reconstruction-era jurisprudence is to consider it as obstructionist to the project of transformation of the time.22 The period is generally considered a low point in the Court’s jurisprudence and frequently omitted from constitutional law surveys. Yet, the above analysis invites rethinking the doctrine of this period. Considered in the light of similar transitional phenomena in other societies, the Reconstruction-era exemplifies a politicized jurisprudence characteristic of periods of political upheaval. This jurisprudence exposes the tensions and incoherence of the supposedly autonomous categories of criminal and civil law, of punishment and administrative law. It also tests the limits of constitutional law, in particular, the extent of the politicization. Reconsideration of Reconstruction case law from a transitional perspective challenges the accepted scholarly understanding of the nature and role of this politicized public law. For the Reconstruction Court, the points of reference doctrinally are the past periods of political transformation in the country’s history. These historical precedents suggest that, even at the time, the measures were treated as extraordinary and peculiar to transitions, as the Court balanced these exigencies with adherence to conventional rule of law.

The Reconstruction-era jurisprudence is guided by compromise; American Reconstruction jurisprudence, like that of other countries in periods of substantial political flux, reflects a limited, partial constitutional justice. In such periods, constitutional adjudication reflects a pragmatic balance of the values of continuity and discontinuity and of the potentially competing rule-of-law values of security and equality. Reconceptualizing the constitutional politics of the period has implications for contemporary debates about the relevant principles guiding constitutional interpretation of the Reconstruction amendments.23 Recognition of the Reconstruction amendments’ relation to the broader political agenda of the time has implications for the question of how these should be interpreted in light of the Reconstruction legislative program, as well as what relation the historical understandings of Reconstruction-era civil rights standards bear for present-day rights controversies. The Reconstruction-era jurisprudence is best understood from a transitional perspective; the period’s transformative purposes clarify the salient decision-making jurisprudence and shed light on its relevance to constitutional jurisprudence.

Law’s Liberation

I do not know a method of drawing up an indictment against a whole people.

Edmund Burke, Speech on Conciliation with America,
March 22, 1775

Historically, the next such massive project of political transformation was denazification, attempted at World War II’s end, when the Allies insisted that supporters of National Socialism be removed from positions of influence in Germany. Whereas postwar trials policy was rationalized as retributive measures designed to avenge Nazi wrongs, at Potsdam, the proposed denazification was justified instead, by the forward-looking purpose of democratization. Denazification was deemed necessary in these terms, to ensure those with fascist leanings were not handed the reins of power. But how to reach all those with undemocratic leanings? Though postwar denazification began with the idea of barring high-ranking Nazi Party officials, SS, Gestapo, and SD from the top power echelons of the new regime, with time, the policy appeared to expand to near universal proportions.

Despite denazification’s asserted democracy purpose, which was forward-looking, the scheme also seemed inherently backward-looking. Advancing the conception of pervasive evil under the Reich, the Nuremberg trials appeared to offer a novel approach to the question of what was the relation of individual to collective responsibility for wartime persecution. The innovation known as “Bernays’ brain child” used individual trials to criminalize Nazi organizations, and organizational convictions to reach individual members to resolve the practical problem of reaching all those responsible. After certain organizations were found “criminal” by the International Military Tribunal, in follow-up Allied trials, organizational convictions became the basis for individual convictions.24 Individual trials would not be necessary; proving membership in criminal organizations would be enough. The idea was controversial for its fluid approach to individual responsibility, challenging intuitions of the rule of law, whereby principles guided designations of status, of rights, and of responsibilities in terms of the individual. After Nuremberg, the idea that Nazism was “criminal” would become true as a matter of law. The punishment policy of the Tribunal helped shape Allied denazification: What characterized the law’s uses in this period were Nuremberg’s fluid continuities in the attribution of individual and corporate responsibility, as well as its mediating of the boundaries of criminal and civil sanctions.

At its inception just after the war, denazification policy under the aegis of the Allied military government in Germany was explicitly linked to the policies of postwar criminal justice developed at Nuremberg, grounded in corporate notions of responsibility. In its first phase, denazification was limited to the disqualification of those in the higher ranks of the Nazi Party and the other organizations found “criminal” at Nuremberg. But when power was transferred back to Germany, a more ambitious stage of denazification began. True to its name, the Act for Liberation from National Socialism and Militarism of March 5, 1946 was intended to free Germany from Nazi ideology. National Socialist tyranny was to be excluded from “influence in public, economic and cultural life.” To that end, through the so-called fragebogen, “questionnaire,” the entire adult population was vetted about its wartime service. The Liberation Act’s broad scope ranged from excluding “major offenders,” those actually implicated in war crimes and crimes against humanity, down to “followers,” nominal supporters of National Socialism.25 The gravamen for sanctions under the law was entirely class-based; knowing membership was enough. With its elaborate framework of sanctions ranging according to varying levels of responsibility, the Liberation Act took the form of a sentencing scheme, evincing denazification’s punitive side. Sanctions that caused deprivations of civil rights—from imprisonment to the deprivation of employment in public and other sectors—appeared to constitute punishment. Nevertheless, despite denazification’s punitive impact, the civil sanctions lacked individual focus; the procedures were noncriminal and predicated only on an administrative process. While, as discussed in chapter 2, criminal justice in transition often implies judicial processes that do not culminate in full punishment, transitional administrative measures seemingly present the obverse picture: the imposition of punitive sanctions without full judicial process.

By all standard accounts, denazification policy failed. Most persons vetted under the scheme were dubbed “followers”—the lowest level of political responsibility. Those sanctioned were subjected to fines only; few were excluded from public office and then only for short periods. Long after denazification, many of the collaborationist elite still held on to jobs they had had under the Nazi regime; even institutions like the judiciary remained dominated by former Nazis.26 Years later, the question of how to treat the prior Nazi civil service was so controversial, it continued to elude consensus; in the country’s new Basic Law, the question was left for the political branches and for another day. Paradoxically, the very same justifications that animated denazification easily rationalized the reinstatement policy. Nazi Party membership was so pervasive that continuing denazification policy would have meant eliminating many of the sitting judges. Prior experience in government, albeit under the Nazi regime, became the basis for integration into public service. Indeed, shortly after the initiation of denazification policy, the Reinstatement Act was passed, reintegrating Nazi officials and, as such, putting the lid on denazification.

In the standard critique of denazification policy, its flaws lay in the failure of implementation because of the political context: the sheer numbers placing unworkable demands on the screening tribunals, the absence of political will, in particular, in light of the cold war, and the difficulty of self-vetting, of the “auto-purge.” There was also the implied relation of Allied denazification to punishment policy, so that after the prosecutions gave way to clemency policy, denazification became difficult to pursue.27 The sweeping breadth of denazification policy over the entire public service seemed to elude enforcement. Thus, denazification’s standard critique derives from a realist perspective; denazification policy’s aborted cause is explained in terms of its political circumstances.

However, the standard critique of denazification begs the question of whether there may have been something wrong with the policy, as it raised the relevance of Germany’s political past to the new regime’s construction of public service and democratic transformation. With this question in mind, one might further ask about the breadth of denazification policy’s scope. In this regard, one might distinguish degrees of past complicity as well as differentiate among the affected governmental positions, thus, for example, distinguishing broadscale purging of the entire public service from the screening of the top political echelon and discrete sectors like the security apparatus. Posing the normative question necessitates justifying transitional administrative justice policy. Postwar denazification’s asserted justification is that of “democracy building.” Excluding Nazis from public service was said to be necessary to reconstruct German democracy. Maintaining the existing administrative apparatus was thought to subvert the possibility of making the transition to a more liberal system. Yet, what exactly is the relation between past political conduct under a prior repressive regime and the ability to participate in a successor liberalizing regime? Our intuitions are that establishing a liberal democracy would not be possible under the Nazi Party’s top brass. In working democracies, political change at the higher governmental echelons occurs through regular elections. However, in societies in between political systems, regular methods of political representation are frequently not yet in place. Moreover, elections do not reach all the public service. Thus, a regime’s change following peaceful negotiations relies heavily on the law to redefine the new political boundaries of the public domain. In these political circumstances, the change of regime through the removal of those entrenched in positions of power is largely advanced by the law. Common justifications for the political purges are exclusion of the prior regime and its supporters from political participation in democracy.

What is the role of political conditionality in the liberalizing regime? The central claim in the democracy argument prevalent in transitions is the forecast that those who acted to further the past repression would be likely to do so again, in this way subverting democracy’s consolidation. The democracy justification is at its most compelling when the affected positions are most similar to those held under the previous regime and when there is a likelihood of repression rearing its head. Accordingly, though mere party membership may not justify exclusion from low-level civil service positions, that would not be true of higher policy-making positions in the successor regime or positions in the state security apparatus enabling the perpetration of rights abuses. The closer the connection between the political disabilities and the affected positions, the more relevant the democracy justification. Yet, on this account, denazification lacked closely justified transitional policy, as there did not appear to be much relation between sweeping political disabilities and democracy. On the contrary, moral considerations aside, competence for prospective employment in the successor democratizing regime was in some sense arguably greater among those with prior political, administrative, and managerial experience. Ultimately, the democracy argument seemed misguided and internally incoherent: For the force of the democratic justification for political disabilities was seemingly premised on the assumption that democracies were shaped more by their personnel than by their structures, institutions, and procedures. Yet this reasoning appears to run counter to liberal political theory.

Postwar denazification, like the Reconstruction-era political disabilities, is best understood from a transitional context. Considering the course of the policy over time underscores its transitoriness and ever-shifting balance over the course of the transition. Denazification policy begins at war’s end, lasting for a circumscribed period of time. The policy tapers off after about five years, in 1950; and by 1951, the transitional phase ends. That sequence tells us something about the processes by which the administrative state reconstitutes itself. Though the frequent critique of denazification policy focuses on the failure to effect permanent exclusions, nevertheless, the policy suggests that the law’s role here was to advance transformation and, as such, its partial and provisional nature is a recurring feature of these politically dynamic periods.28 Though right after the war, the association with the Fascist regime was fatal to political participation; after the passage of time, such past political service became acceptable, and even desirable, in subsequent successor regimes. Governmental experience, albeit under the Nazis, became the basis for integration in public service.29 Participation in the prior regime became normalized after an ordinary administration shift. Treatment of the predecessor regime shifted from discontinuity to continuity. In the beginning, denazification legislation was animated by the dominant purpose of restoring legitimacy; as the successor regime consolidates, public policy gives way to other purposes.

Considered as an isolated instance, denazification has generally been viewed as a failed attempt at transformation. Yet, when considered in a comparative/historical perspective, together with other measures applied during periods of radical political upheaval, the postwar experience turns out to be closer to the transitional norm. Administrative purges occur in periods of fragile and unstable political order; these measures are provisional and often temporized over the period of political transformation. From the start, these measures are pragmatic resolutions intended as transitory for a particular political period of reconstruction. They are always understood as transitional justice.

Epuracion and Zuivering: The Politics of Exclusion

Whereas in Allied-occupied Germany, there reigned a sense of pervasive collective responsibility, by contrast, elsewhere in postwar Europe, there was an enemy to purge. Liberation from Nazism went hand in hand with wholesale purges of supporters of the prior regime. And the basis of these purges is explicitly ideological: Postoccupation justice is forged in terms of we/they, friend/foe, collaborator/resistance; it is reconstitution by deconstitution.

After the collapse of the occupying regimes in postwar Europe, societies responded to a public sphere utterly compromised by its support of fascist power. In the transitions out of fascism, newly reconstructed friend/foe lines went beyond the reconstruction of the administration to a broader public sphere comprising all civil society. Postwar Europe’s purge practices reveal how administrative justice involves a turning away from regular criminal processes to those more sweeping and informal, moving away from the judiciary to other tribunals or bodies, often isolated within vast governmental entities. The departure from established criminal law and regular judicial processes highlights the purges’ politicization. Throughout the region there is the attempt to impose measures of political conditionality and judgment, a move toward informal processes and vague political offenses, such as “national degradation” and “national indignity.”30 Although, ordinarily, penal judgment is based on past unlawful behavior, the new offenses were predicated simply on the finding of a political condition declared by a body given this authority during the transition. Establishing collaboration and other political crimes entailed only proving the political status of supporting totalitarian doctrine. The gravamen of the investigations was not past criminal conduct as in a trial but, rather, membership or support of past so-called subversive political associations. Along with the reconceptualization of offenses came special procedures, laws, courts, and forms of action.31 The purging tribunals were not the ordinary courts of law but military courts and administrative bodies composed of judges, nonjurists, and lay persons. Though the penalties sometimes appeared to be traditional criminal sanctions, others affected civil status, such as the loss of the franchise, rights to political participation, and even citizenship. Both in its processes and effect, this was extraordinary justice.

As a historical matter, purges are visited on the ancien régime leadership, yet the postwar purges went further, reflecting a broad understanding of the scope of responsibility and transformation. Postwar measures expelled individuals from a broader segment of society, including sectors not previously considered part of the administration, such as education and the media. As such, the purges reconstitute the domain of the public sphere, as they attempted to restructure the various corporate sectors: business, the media, and those intellectual elites, which, in one fashion or another, had supported the Nazi regime. The purges, therefore, were radical restructurings of the professions with special purging committees for educators, writers, and musicians. Though purges regulated the private sector, they did so pursuant to governmental decree. Offenses were vaguely stated, and failure to have “the proper attitude” during the occupation made for newfound liability.32

Nowhere were the purges more radical and sweeping than in the media.33 In the case of the press, the offense of collaboration was easy to prove—with proof texts—and publication kept the issue of collaboration in the public eye. In a series of purgings and reenactments, the media was rededicated to the new political regime in the public eye. When collaboration papers became the object of purge orders, the parameters of free expression were reconstructed in response to the past. Even newspapers’ names were subject to critical changes, like that of the French newspaper Libération, symbols of changed identity.

The postoccupation purges of the public sphere go far beyond the civil service; the attempt is nothing less than to “purify” society. These political purges in the public sphere critically respond to the distinct nature of fascist repression that is achieved by the hegemonic control of the sectors of ideological production, such as education and the media.34 Accountability for the intellectual elite recognized its role in hastening the fascist takeover and attempted to reorient this sector to the liberal ideology of the successor regime.

Postwar purges reconstruct the relation between the individual, mediating associations, and the state. Defined in terms of the collective, political disabilities are, nevertheless, brought to bear against the individual. These processes’ informal approach to the identification of past fascist affiliation suggests that group-based exclusions are not primarily aimed at individual wrongdoing. They are not justified in these terms but, instead, as defining cognizable institutional change for the transformation of the public domain. Individuals are a means to expurgate publicly the ideology of the ancien régime from the future public sphere. The postwar purges challenge our intuitions about the rule of law, as the administration of justice is not applied in known regular procedures but through highly informal, irregular procedures. The measures’ diminished due process, along with their nontransparent and politicized nature, reflect a compromised understanding of the rule of law. And, though the purposes are forward-looking, sounding in democracy, the means are in some sense just the old ones associated with repressive regimes: of categorical judgments made on an ideological basis, at odds with liberal thought. Though paradoxical, it is the critical response—the explicit undoing through the old forms that best signals the ideological switch. Moreover, the tension of illiberal means directed to liberal, forward-looking ends is reconciled by these measures’ limited impact on the legal system. Postwar purges lasted only a short while, from as little as a year to five years.35 These radically politicized measures were bounded ex ante, as from the start they were intended to be provisional transformative mechanisms. The temporizing seen here, as in earlier instances, for example, American Reconstruction, is also manifest in contemporary political transformation discussed in this chapter. What emerges is that even the most radical politicized responses to repressive rule are intended as provisional from the start and constitutive of transition.

Lustrace and Bereinigung: Political Purges in East and Central Europe

Everyone, however, is in fact involved and enslaved, not only the greengrocers but also the prime ministers. Differing positions in the hierarchy merely establish differing degrees of involvement: the greengrocer is involved to a minor extent, but he also has very little power. The prime minister, naturally, has greater power, but in return he is far more deeply involved. Both, however, are unfree, each merely in a somewhat different way. The real accomplice in this involvement, therefore, is not another person, but the system itself. Position in the power hierarchy determines the degree of responsibility and guilt, but it gives no one unlimited responsibility and guilt, nor does it completely absolve anyone.

Václav Havel, Open Letters: Selected Writings: 1965–1990