Transitional Justice Symposium: Teitel’s Conceptual Revolution–Locating Law in Shifting Political Ecologies

[Danielle Celermajer is a Professor in the Department of Sociology and Social Policy at the University of Sydney.]

When Transitional Justice was published twenty years ago, its principal and most explicit contribution was its incisive articulation of a sophisticated theoretical framework for a range of real-world institutional innovations that had emerged as nations around the world were seeking to grapple with their violent pasts. There was already at that time an emerging intuition, and a scattered literature, principally in political science and law, seeking to understand and thematize the field, but Teitel’s book did so with the type of integrative and internally complex conceptualization that marks what we subsequently come to think of as ‘field defining’.

In these reflections, I seek to illuminate three aspects of the book that fall outside its broadly celebrated role in the field that it named, but that stand as exemplars for scholarship at its most fertile and capacious, in law and beyond. The first is its recognition that even as academic disciplines and professional communities police the boundaries of institutions so as to claim them as spaces that belong to their distinctive fields – the preserve of law or politics, for example – such institutions are always constituted by and constitutive of a larger multidimensional (social-political-legal-cultural-discursive-historical) ecology. The second is its demonstration of the intellectual power of inter-disciplinary scholarship. The third is its appreciation of inter-temporality, and the way in which speech and institutional acts ostensibly oriented toward the past are in fact constitutive of the future.

One of the principal targets of the critical human rights literature that has emerged in recent years is human rights law’s putative claim to transcendence above politics. According to this critique, those who seek to deploy human rights law as a tool for intervening in violence or injustice falsely represent it as a normative field grounded outside the political fray and thus capable of reordering politics according to a set of principles that are themselves beyond political contestation. Transitional Justice explicitly rejected this understanding of law, arguing that (and demonstrating how) legal norms and institutions are formed within actual and hence contingent political and historical contexts. At the same time, the principles of international law, themselves forged through the process of grappling with the shortcomings generated by law’s traditional tethering to state sovereignty, afford an alternative ground from which law can be marshalled as a source of critical transformation. Teitel insisted that we are neither compelled to denounce law as irrevocably political and thus compromised all the way down, nor need we be seduced into representing it as a beacon of light from above. In so doing, she exemplified precisely the type of refusal of totalizing theoretical systems that academia, as politics, unfortunately tends to foster.

During the last twenty years, the conceptual frame that Transitional Justice articulated using the language of co-constitutive fields or systems has moved from the periphery of creative academic thought. Expanding beyond what we think of its traditional home in the natural sciences, across a range of disciplinary fields in the humanities, social sciences, and importantly in this moment, in public health, the logic of ecologies, where causal relations are understood as complex and multi-directional, rather than linear or even dialogical, has acquired increasing salience. Today, largely through the work of feminist theorists, including in the field of law, relational ontologies have come together with systems theories in ways that demand that scholars in all disciplinary fields recognize the embeddedness of their own objects of study within the worlds that both shape and are shaped by them. Reflecting on how Transitional Justice informed my own work, while the most obvious link was in my research on the constitutive role of political apologies, its longer ‘durée’ has been its influence in my own ecological thinking.

Academics across diverse fields are also coming to recognize the critical importance of inter-disciplinary scholarship, especially when we are trying to address wicked problems like institutionalized violence and injustice (even as academic structures continue to impede inter-disciplinary collaboration). Transitional Justice (the book), in this regard, prefigured transitional justice (the field), as one formed through multilateral conversations between scholars of history, political science, literature, sociology, anthropology, philosophy, psychology, law, and of course the communities of activists, writers and artists who were building the field in practice all along.

Although it is twenty years since I first read the book, what remains most vivid in my memory is not, in fact, the brilliant abstract conceptual analysis, but Teitel’s evocation of biblical stories and Shakespeare, mythology and literature, which, was, I suppose, her point. Describing the transitional journey as the arc from the fatedness of tragedy to the redemptive possibility of comic-romantic conventions not only animates legal political theory (especially when filled with characters like Jacob and Esau, Prospero and Antonio); it reminds those of us who tend to circulate within disciplinary and academic precincts, of the resonant conversations occurring elsewhere. Writers, storytellers, artists, composers, practitioners of religious and spiritual traditions, and community organizers (and many others) have long been trying to work out how we move beyond the patterns of injustice, ignorance of violence that we have created and that continue to shape us. For us humans, seemingly bound to err, but also imbued with the capacity to imagine other possible futures, this is perhaps the most important of all questions, and amongst the most perplexing. Borrowing Clifford Geertz’s famous arachnid metaphor; how do we disentangle ourselves from the webs of meaning that we have spun and which we must thus inevitably use? Because those webs are multidimensional, and material as well as discursive, we need to approach the task of disentanglement from multiple angles and with an array of tools. And even as we do this work, we need to be alive to the ways in which we are always re-entangling ourselves, albeit, we might hope, into webs that are more capacious, emancipatory and enabling.

This image of unspinning and spinning evokes the inter-temporality of all institutional transformation that Transitional Justice articulated. Its insight is one we very much need in this political moment. If we are, for example, to shed light on what is fueling the often-fractious debates – if not violent clashes – over the past in which political communities across the world are embroiled, we need to eschew the imaginary of time as a unidirectional arrow. The contemporary political mantras used to whip up popularist sentiment make this evident – the promised future references a supposedly lost, but recoverable great past. At the same time, those seeking a transformed future understand that its creation must draw its nourishment from histories narrated otherwise; ones that make explicit the exclusions and silences and the violence wrought in the process of forging ‘greatness’ for the few. No doubt, law’s purposes include retribution, with its backwards leaning inclination, but in its transitional mode, law narrates the past so as to produce the normative principles that ‘we the polity’ collectively affirm for our collective future. Aspiring to do so in ways that do not re-inscribe norms that, while perhaps different, are nevertheless totalizing, is no doubt a profound challenge, especially when the politics of transition are driven by the negative emotions of anger and vengefulness. But if all members of the political community are to come to count as subjects empowered and enabled to play an equal role in its ongoing constitution, certain speech acts concerning the past are necessary, as are the institutional actions that would operationalize them; namely the unqualified condemnation of state policies, actions and tolerations that render some of lesser worth than others, and that erode the capacity of some to flourish.

When Transitional Justice was written, what preoccupied its author and those who took it up as a guiding text were systematic and structural injustices against certain groups of humans, and the challenge of constituting political communities informed by principles sufficient to foster robust and nuanced equality across human identity difference. Twenty years later, the questions of justice that it asked must also be turned to the beings other than humans whose capacity to flourish has been so violently abused: through deforestation, through industrial agriculture and animal farming, through the intensification and indiscriminate expansion of fossil fuel extraction, through the destruction of ocean habitats and industrial scale fishing, through the webs of meaning we weave in which they do not count as subjects of justice at all. As the climate catastrophe effects a destabilization of our institutions with a rapidity and on a scale we could never have imagined, we might ask how the principles and insights engendered by Transitional Justice might be seized in this moment, as we are charged with the moral obligation to constitute a future where these myriad excluded and abused others also come to count as subjects of moral considerability and justice.