Transitional Justice, Retributive Justice and Accountability for Wrongdoing
It is widely recognized that communities should respond to wrongdoing. One standard response, commonly taken to satisfy the demands of justice, is the trial, conviction, and legal punishment of perpetrators. Legal punishment involves the intentional infliction of something burdensome by the state, which communicates condemnation of a criminal action. However, legal punishment is fraught politically and morally in paradigm transitional contexts. Transitional contexts refer to societies emerging from an extended period of conflict and/or repression and engaging in the process of democratization. South Africa following the end of apartheid, Guatemala after its extended civil war, and Egypt in the aftermath of the toppling of Hosni Mubarak are a few of the paradigm examples of societies in transition.
Punishment in the context of a transition is often difficult, given that those responsible for wrongdoing may still wield influence and threaten a transition if prosecuted; evidence may have been destroyed by state agents prior to a transition which diminishes the likelihood of a successful prosecution; and the number of potential cases to pursue overwhelms the capacity of criminal justice systems. The difficulties surrounding punishment have led many transitional societies to adopt alternative processes for dealing with past wrongs (e.g., truth commissions, reparations and/or programs of lustration). However, the moral status of alternative practices, and in particular whether they satisfy the demands of justice, is the subject of ongoing dispute. According to theories of retributive justice, perpetrators of wrongdoing deserve to be punished. Insofar as this is what justice demands, alternatives that do not entail the imposition of punishment seem to be merely second-best alternatives, necessary to adopt in transitional contexts because of the pragmatic obstacles to successful conviction and punishment.
I argue in this chapter that it is a mistake to use the standards of retributive justice to evaluate the justice of responses to wrongdoing, including punishment, in transitional contexts. Establishing the justice of any response to wrongdoing is always a context-dependent exercise. The case for punishment offered by theories of retributive justice is compelling in the circumstances of justice characterizing reasonably just and stable democracies. However, the circumstances of justice that typify such societies are importantly different from the circumstances that typify transitional communities. In the circumstances of transition, the rationale for punishment offered by theories of retributive justice is not persuasive. Punishment may be just in such contexts, but it will not be just for the reasons retributive theories offer. Nor is it obvious that punishment is the only response that will satisfy what justice demands in terms of how perpetrators of wrongdoing should be held accountable for their actions.
There are three sections to this chapter. In the first section, I provide an overview of the standard, retributive account of the justice of punishment. I emphasize the reasons given for why punishment is controversial and in need of justification, and on the contextual circumstances of justice implicitly or explicitly assumed to make punishment controversial in these ways. The second section then argues that the contextual circumstances assumed to hold in the standard retributive account of punishment do not obtain in paradigm transitional contexts. I lay out four alternative circumstances that characterize transitional societies, and the implications of these circumstances for the plausibility of the standard retributive justification of punishment. In short, the retributive rationale for punishment is not compelling in the circumstances of a transition. This is not to suggest that punishment is not justified in transitional contexts. Rather, the rationale for the justifiability of punishment will need to be different, given the variations in the context in which it is being implemented. The third and final section articulates desiderata for an adequate theory of punishment for transitional contexts. These desiderata suggest that responses other than punishment may be not only justifiable but also better suited as ways to hold perpetrators accountable for wrongdoing in the circumstances of transitions.
Standard Account of Punishment
Retributive theories of punishment answer the question: why is punishment by the state just? Principles of justice articulate especially demanding deontological constraints on action.1 I take deontological constraints to specify in part what is needed to recognize the basic, irrevocable, and equal dignity of individuals. Such constraints ground claims that individuals have on other individuals, institutions, or agents, claims that give rise to obligations or duties of justice of such individuals, institutions, or agents. Such duties are legally and socially enforceable by society. In this section, I lay out four basic assumptions of theoretical accounts of retributive justice, before going on to explain why punishment is morally controversial given these assumptions and how theories of retributive justice respond.
Accounts of retributive justice that explain why punishment is just assume that there is nothing especially suspect or problematic about either criminal law or the state. That is, criminal law is as it should be; that is, the sorts of behavior that should be criminalized are criminalized. Criminal behavior is wrongful behavior. Behavior proscribed in the criminal law roughly captures or coheres with the public’s views about what sorts of behavior are wrong and what sorts of wrongs should be prohibited by the state. Citizens are—and are generally recognized to be—equals. That is, they enjoy an equal status in the political community, and this is reflected in the criminal law. Theorists thus assume what I will call limited structural injustice. Limited structural injustice reflects the recognition by theorists of the possibility of the existence of structural injustice even in reasonably just states. However, the overall institutional system is such that it does not undermine or threaten the legitimacy of the institutional order.
The state is also taken to have political authority. The state, in other words, has the right to govern, setting norms for interaction and enforcing those norms. The state maintains its authority by respecting the limits on what it is authorized to do.2 Theories of retributive justice thus typically assume the condition of what I will call narrow uncertainty about authority. Particular questions may arise in practice as to the authority of a particular government official, given for instance his or her complicity in wrongdoing. Or disputes may arise as to which branch of government has the authority to deal with a particular issue or question. However, the basic authority of the state to set out norms governing conduct and enforce those norms is not in dispute, and the limits on the state’s authority are generally respected.
The state in which punishment is being considered is also taken to be relatively stable. The condition of what I call minimal existential uncertainty obtains. That is, there is a clear political trajectory for a given political community, one in which the basic institutional structure is maintained and continues to structure the community.
Against this background punishment is morally controversial because of a possible tension between the intentional infliction of something burdensome on citizens and the respect owed to all citizens. Punishment characteristically includes the loss of liberty. One worry is that such a loss of liberty renders a citizen unequal in terms of the standing she enjoys within the state; the question arises, “How is punishment consistent with, or even expressive of, the respect that citizens owe to each other?”3 A more general utilitarian worry is that the infliction of something unpleasant serves no purpose, and so causes needless suffering.
Theories of punishment respond to both kinds of worries, establishing how someone becomes liable to the infliction of something burdensome by committing a crime, why this imposition is compatible with equal citizenship, and what moral purpose punishment serves.4 In particular, theories of negative retributivism explain how individuals become liable to punishment and its compatibility with equal citizenship. Such theories establish the moral permissibility of punishment; it is something that states may permissibly do. Theories of positive retributivism explain why there are good moral reasons to inflict punishment on those who are so eligible. In particular, such accounts provide a rationale for instituting a system of criminal law, where the rationale is based fundamentally on the claims that it is important for the state to give people what they deserve and that this is what punishment for perpetrators does. “‘Positive’ retributivism is typically expressed in the language of penal desert … penal desert constitutes not just a necessary, but an in principle sufficient reason for punishment.”5
To illustrate how a set of circumstances of justice affect the justification of principles of retributive justice, consider the theory of retributive justice developed by Jean Hampton.6 My aim in discussing Hampton is not to challenge her defense of the core positive retributive intuition; to the contrary, against the background context that is implicitly assumed, Hampton’s defense of the basic principle of retributive justice is quite compelling.
At their most general level, theories of retributive justice offer an account of what constitutes the just treatment of a perpetrator of wrongdoing. In particular, retributive theories explain why justice demands that perpetrators of wrongdoing suffer, characteristically via punishment. All wrongful actions involve the violation of a moral standard for conduct, and often that violation results in wrongful harm to an individual. However, according to Hampton, only a specific category of wrongful action deserves a retributive response. Some wrongful actions insult a victim’s dignity and inflict moral injury on victims by damaging his or her ability to realize her value and have that value acknowledged.7
To explain the moral injury inflicted by some kinds of wrongdoing, Hampton first assumes a Kantian theory of moral worth, according to which all individuals have equal moral value by virtue of our humanity. This value is not something that other individuals can alter through their actions. However, all individuals are vulnerable to being diminished. Human behavior is communicative and can express views about the value of others.8 Some wrongful conduct communicates a message about the value of the victim, a message that is “‘read off of’” the action.9 In particular, in committing some wrongs a perpetrator falsely declares that he is superior to the victim in value and is permitted to treat the victim in the manner constitutive of the wrong done; the victim is entitled to no better treatment. An individual is diminished if she is the target of behavior or treatment that falsely communicates her relative inferiority. Illustrating with the example of rape, Hampton writes, “The action—in both its commission and in its results—representing the rapist as master and the victim as inferior object … accounts for its being wrongful.”10
Though victims are not in fact less valuable than perpetrators and do not lose value through such treatment, they can be injured by such wrongdoing in two ways. First, such treatment damages the acknowledgement of a victim’s value. The act of wrongdoing itself failed to acknowledge the victim’s value. Moreover, that failure by the perpetrator makes a victim vulnerable to similar treatment by others and potentially reinforces an incorrect understanding of an individual’s value among others, including the victim. Second, wrongdoing impairs a victim’s ability to realize her value. Having a certain value generates entitlements to make claims on others, including claims to be treated in particular ways. To be intentionally treated in a way that violates these claims, often by being subject to certain harm, is to deny an individual’s ability to have her value respected through the actions of others. In Hampton’s words, “harms anger us not merely because they cause suffering we have to see in others, but also because we see their inflictions as violative of the victim’s entitlements given her value.”11
In Hampton’s view, justice demands that this false claim expressed in wrongdoing be countered and that the moral equality of perpetrator and victim be reasserted. More specifically, to repair the injury involved in wrongdoing it is necessary to annul the act of diminishment. Annulling the act and asserting the moral truth cannot be accomplished through words alone.