Transitional Justice Symposium: Transitional Justice as a Touchstone for Normative Accounts

[Colleen Murphy is the Roger and Stephany Joslin Professor of Law and Professor of Philosophy and Political Science at the University of Illinois at Urbana-Champaign.]

Ruti Teitel’s 2000 book, Transitional Justice,was and remains agenda-setting for scholars working in normative theory.  In this post I explain why and some of the ongoing debates whose origin can be traced to her work.

Normative theories of justice specify what justice demands and why this is the case.  Such theories are not descriptive.  They do not aim to capture the views of justice held by members of a particular community.  Normative theories aim to capture what should be the case, not what is. The method of normative theory is not the method of social science; surveys can tell us what a specific group of individuals believe justice requires, but do not determine what justice in fact demands.  Normative theorizing also assumes that what is the case need not be the case; power dynamics and relations may influence, but do not determine, what can and should occur. Normative theorizing aims to provide standards for critique of existing beliefs and practices.  When what is departs from what should be, we have grounds for critique of perpetrators or enablers of injustice. 

Within normative theorizing, justice holds a special place.  Justice is the first virtue of social institutions, philosopher John Rawls famously claimed.  Aspects of this claim are the subject of ongoing debate (e.g., whether individual actions or institutions, or both, should be evaluated from the perspective of justice). But what remains unchallenged is the claim that justice has a particular kind of normative weight.  To claim that an injustice has been done or systemic injustice exists is to make a claim that demands immediate attention and calls out for a response and rectification.  When injustice exists, characteristically not only private citizens but also importantly governmental bodies and institutions are called upon to respond. 

Contemporary normative theorizing about justice is rarely about justice as such.  Rather, particular and familiar kinds of justice are the subject of inquiry. Retributive justice, for example, demands that that perpetrators of wrongdoing suffer.  Theories of retributive justice explain why justice in fact demands this, in the face of scepticism that suffering is no more than what vengeance desires.  Distributive justice demands that the benefits and burdens of social cooperation (e.g., in the forms of income or rights, taxes and duties) be distributed according to specified criterion.  Theories of distributive justice explain why the principle for distribution is merit-based or is such that it is to the benefit of the least advantaged, to take but two examples.  Corrective justice demands that wrongful losses be compensated by the party responsible for inflicting such losses, and theories of corrective justice explain why such losses should not be borne by the victim.  Normative theories of justice map, albeit imperfectly and incompletely, on to areas of law.  Retributive justice is for many an aim of criminal law, corrective justice an aim of tort law, and distributive justice achieved or thwarted through tax law. 

For scholars working in normative theory, the brilliance of Teitel’s book lies in its exploration of the limits of existing normative theories of justice, limits defined by the implicit cases and assumptions that shape normative theorizing. Theories of justice respond to particular questions motivating inquiry and cases against which answers seem intuitively plausible.  For theories of retributive justice, for example, the legitimacy of the state is not in doubt; the standing of the state to intentionally deprive equal citizens of their liberty is. Such theories explain why this is a permissible response by states to perpetrators of criminal wrongs. 

Transitional justice exposes the limited nature of the cases theorists work with and the incompleteness of the questions of justice they address. Teitel argues that transitional justice in different than ordinary justice by showing why the pursuit of accountability for perpetrators or reparations for victims in transitional contexts raises questions and dilemmas which familiar theories of justice lack resources for answering and addressing. 

Teitel argues that wrongs during transitions from authoritarian regimes to democracy must be addressed in part to draw a line between conduct tolerated in the past and conduct that will be tolerated in the new era, thereby contributing to establishing the legitimacy of the new democratic regime.  But drawing this line, she shows, is normatively fraught. For example, Teitel discusses the rule of law, normally an ideal setting out standards that legal systems should meet.  The rule of law is taken to be valuable in part because of the stability in legal rules over time that it ensures; such stability matters to the ability of legal subjects to be able to form reliable expectations of how they will be treated if they meet or flout legal requirements.  Yet the transitions with which transitional justice is concerned aspire to be normatively revolutionary, overhauling the order that enabled or demanded wrongdoing of the kind that processes of transitional justice focus upon.  Transitional justice aims, in other words, precisely to unsettle and generate instability.  Where then, Teitel asks, does this leave the rule of law in relationship to transitional justice?

Or consider criminal law and the retributive justice it is supposed to mete out.  According to retributive justice, perpetrators of criminal wrongdoing deserve trial and, upon a verdict of guilt, punishment. However, Teitel notes, in fact trials are the response to only a few perpetrators in transitional contexts.  The notion of responsibility as it is understood in criminal law is moreover inadequate to capture responsibility for the group-based wrongs that transitional justice takes up, and which implicate state actor.  Furthermore, the prescriptions of retributive justice seem incomplete when dealing with questions of accountability.  Common forms of accountability for perpetrators, such as truth telling or amnesty, are not the forms of accountability that retributive justice proscribes, so what follows from the perspective of justice?  Accountability intuitively seems to need to be more expansive in transitional contexts than a limited focus on perpetrators.  Beneficiaries, collaborators, and individuals otherwise complicit in wrongdoing seem too to be apt subjects for accountability too.

One mark of great scholarship is the debates generated through it.  Teitel’s book reflects this. In my work I propose an alternative characterization of the conditions that distinguish transitional justice from other forms of justice, but my project was motivated by the set of questions raised by Teitel’s book.  To take a different example, Teitel’s central assertion is that what transitional justice requires is radically context-specific and will depend on the nature of the injustice in the past; she refrains from offering any general normative guidelines that cut across cases.  But I note that few normative theorists accept such a radically contingent conception of what justice demands.  The application of general principles of justice to particular transitional societies might vary depending on the particular form wrongdoing took, but the general principles of justice themselves do not.  Finally, whether transitional justice is in fact distinct from other kinds of justice remains the subject of disagreement. 

Another mark of good scholarship is that it provides a theoretical foundation upon which other can build.  Both scholarship and practice has moved beyond the focus of Teitel’s own analysis of cases of transitions from authoritarian regimes to democracy.  Transitions from conflict, transitions in settled democracies, and transitions during conflict have all been sites where transitional justice has been applied, though there remain questions about whether all of these cases should fit under the umbrella of transitional justice.

In the twenty years since the publication of Transitional Justice, the scholarship and practice of transitional justice has seen an expansion across multiple disciplines and within dozens of countries that is rare.  But this maturity has not rendered Teitel’s work obsolete.  Instead, Transitional Justice remains a touchstone for normative accounts.