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Transitional Justice

Transitional Justice: NOMOS LI

Melissa S. Williams
Rosemary Nagy
Jon Elster
Copyright Date: 2012
Published by: NYU Press
Pages: 384
https://www.jstor.org/stable/j.ctt9qg3wp
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  • Book Info
    Transitional Justice
    Book Description:

    Criminal tribunals, truth commissions, reparations, apologies and memorializations are the characteristic instruments in the transitional justice toolkit that can help societies transition from authoritarianism to democracy, from civil war to peace, and from state-sponsored extra-legal violence to a rights-respecting rule of law. Over the last several decades, their growing use has established transitional justice as a body of both theory and practice whose guiding norms and structures encompasses the range of institutional mechanisms by which societies address the wrongs committed by past regimes in order to lay the foundation for more legitimate political and legal order.InTransitional Justice, a group of leading scholars in philosophy, law, and political science settles some of the key theoretical debates over the meaning of transitional justice while opening up new ones. By engaging both theorists and empirical social scientists in debates over central categories of analysis in the study of transitional justice, it also illuminates the challenges of making strong empirical claims about the impact of transitional institutions.Contributors: Gary J. Bass, David Cohen, David Dyzenhaus, Pablo de Greiff, Leigh-Ashley Lipscomb, Monika Nalepa, Eric A. Posner, Debra Satz, Gopal Sreenivasan, Adrian Vermeule, and Jeremy Webber.

    eISBN: 978-0-8147-2527-6
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-xii)
    Melissa S. Williams
  4. CONTRIBUTORS
    (pp. xiii-xiv)
  5. INTRODUCTION
    (pp. 1-30)
    MELISSA S. WILLIAMS and ROSEMARY NAGY

    As we fi nalize this volume on transitional justice in April 2011, a historic transition is taking place across North Africa and the Middle East. In Egypt, a democratic uprising has brought an end to thirty years of dictatorship under President Hosni Mubarak. Senior offi cials in the Mubarak regime are already facing criminal prosecution, and there are visible steps toward the prosecution of Mubarak himself. Citizens are demanding the ouster of offi cials from leadership positions in the state bureaucracy and universities. A democratic referendum has approved a new interim constitution for the military caretaker regime, and free elections...

  6. 1 THEORIZING TRANSITIONAL JUSTICE
    (pp. 31-77)
    PABLO DE GREIFF

    Transitional justice has become the focus of intense interest by academics and practitioners alike. One revealing indicator of the notion’s currency and of a growing common sense about its general character is the emergence of offi cial and quasi-offi cial international documents on transitional justice. Perhaps the most important example of such a document is the former UN Secretary General’s Report, “The Rule of Law and Transitional Justice in Confl ict and Post-Confl ict Societies.”¹ This report offers not only a defi nition of transitional justice but also a sophisticated understanding of the notion. It defi nes transitional justice as...

  7. 2 JUSTICE, TRUTH, PEACE
    (pp. 78-97)
    JON ELSTER

    The mind seems to have a natural tendency to assume that all good things go together. This may be a result partly of what psychologists call “tradeoff aversion”¹ and partly of wishful thinking. Let me offer some examples.

    Marx asserted that in the transition to Communism, one should try to “shorten and lessen the birth pangs.”² For a given duration of the transition, less violence would obviously be desirable; for a given level of violence during the transition, the shorter it is, the better. But a more gradual transition might involve less violence.

    The movement for “socially responsible investment” is...

  8. 3 FORMS OF TRANSITIONAL JUSTICE
    (pp. 98-128)
    JEREMY WEBBER

    These questions are commonly approached as though they concerned departures from strict justice in the interest of achieving national reconciliation and ensuring the success of the transition or simply as a concession to the fact that those who benefi ted from the former regime retain considerable power and therefore have to be appeased. Posner and Vermeule, for example, in their survey of the area, say that standards of transitional justice “reflect liberal commitments leavened with prudential concern for good transition management. . . . Transitional justice requires a balance of liberal commitments and political precautions. It is achieved when liberal...

  9. 4 COUNTERING THE WRONGS OF THE PAST: THE ROLE OF COMPENSATION
    (pp. 129-150)
    DEBRA SATZ

    Demands for repair can sound in different registers. Think of a mundane case of harm, concerning harm to one person’s property, occurring in the present. If A intentionally damages B’s car, B can ask A to provide monetary compensation; to restore (if possible) her car to its undamaged state; to apologize or perhaps even to make a public acknowledgment of his responsibility. B can seek to have A prosecuted under law for his acts, seek mediation, or attempt to settle things on her own without third-party involvement. What B asks of A can reflect what B cares about, what she...

  10. 5 REPARATIONS AS ROUGH JUSTICE
    (pp. 151-165)
    ADRIAN VERMEULE

    I agree with much of Debra Satz’s nuanced overview of compensation for historical injustices.¹ On both principled and pragmatic grounds, such compensation is exposed to many familiar objections and misfi res in a familiar set of hard cases. Indeed, there is a marked disconnect between the arguments and the policies in this area. Philosophers and others have thoroughly demolished the compensatory rationale for reparations,² yet governments, including the U.S. government, keep enacting programs of this sort, and such programs overwhelmingly tend to include compensatory cash payments along with in-kind compensation, in-kind restitution, apologies, and other noncash components. It seems that...

  11. 6 REPARATIONS AS A NOBLE LIE
    (pp. 166-179)
    GARY J. BASS

    It is easy enough to imagine reparation for little harms. But what is to be done after a death—since the life can never be brought back—or after major atrocities or wars? Is there any such thing as repair after such awful wrongs?¹

    Jonathan Randal forthrightly entitled a book on the KurdsAfter Such Knowledge, What Forgiveness?²In the Jewish tradition, one is not forgiven by God on Yom Kippur until one has made reparation to the wronged human. In a murder case, that can never really be done. There is no repair after Srebrenica, let alone the welfare...

  12. 7 LEVIATHAN AS A THEORY OF TRANSITIONAL JUSTICE
    (pp. 180-217)
    DAVID DYZENHAUS

    Thomas Hobbes’sLeviathanis a theory of transitional justice. While Hobbes starts his account of the process by which civil society is achieved in the state of nature, as a matter of fact his audience was not composed of individuals who were at war with each other. Rather, they were people, divided into political factions, who had just emerged from a civil war and who faced the task of reconstructing a society torn apart—though not totally destroyed by—the war.Leviathan,in my view, contains both signifi cant instruction about how to achieve civic peace in the face of...

  13. 8 TRANSITIONAL PRUDENCE: A COMMENT ON DAVID DYZENHAUS, “LEVIATHAN AS A THEORY OF TRANSITIONAL JUSTICE”
    (pp. 218-232)
    ERIC A. POSNER

    David Dyzenhaus’s interesting chapter argues that Hobbes’s theory of justice provides insights into questions of transitional justice faced by modern societies such as South Africa and the successor states in eastern Europe. I am no expert on Hobbes, so I will not comment on Dyzenhaus’s interpretation ofLeviathan.I will also not dwell on large areas of agreement. I will, however, express some doubts about whether Dyzenhaus’s interpretation of Hobbes’s thought, or the “Hobbist” alternative, can provide much practical guidance for evaluating the transitional measures that we have observed in recent years. I conclude that the most valuable Hobbesian insight...

  14. 9 WHAT IS NON-IDEAL THEORY?
    (pp. 233-256)
    GOPAL SREENIVASAN

    Derek Parfit concludes his seminal analysis of egalitarianism with the rueful observation, “Taxonomy is unexciting, but it needs to be done.”¹ No doubt every taxonomer harbors secret hopes that his taxonomy will still prove useful, despite being tedious, though few succeed on anything like Parfit’s scale. In a field as neglected as that of non-ideal theory, one might think that greater optimism in this regard could survive without a protective guard of caution. But it is difficult to know, since tedium can be such a challenge to surmount.

    Any analysis of the category of the “non-ideal theory of justice” should...

  15. 10 WHEN MORE MAY BE LESS: TRANSITIONAL JUSTICE IN EAST TIMOR
    (pp. 257-315)
    DAVID COHEN and LEIGH-ASHLEY LIPSCOMB

    In this volume, Jon Elster argues that it is wrong to assume that the development of each of the core objectives of transitional justice—truth, justice, and peace—is synchronous and complementary. In fact, more of one does not necessarily lead to more of the other¹ This chapter uses the case of East Timor² to challenge the notion that the accumulation of transitional justice mechanisms in any one post-conflict context necessarily leads to a better result for the population for whose benefit these mechanisms are purportedly deployed. To put it somewhat simplistically, more may actually mean less if scare resources...

  16. 11 RECONCILIATION, REFUGEE RETURNS, AND THE IMPACT OF INTERNATIONAL CRIMINAL JUSTICE: THE CASE OF BOSNIA AND HERZEGOVINA
    (pp. 316-360)
    MONIKA NALEPA

    Standard definitions of transitional justice identify its context (transitions from authoritarian regimes to rights-respecting ruleof-law regimes), its core institutions (of which the most prominent are criminal tribunals and truth commissions), and its broadest aspirations (establishing historical truth, achieving retributive justice for human rights abuses, and, ultimately, establishing peace or reconciliation among the citizens of the new regime). Commonly, truth commissions are identifi ed with the aspiration to truth and reconciliation, and criminal tribunals are associated with the goal of retributive justice and accountability. Some scholars pose the choice between truth and justice as dilemmatic;¹ however, most scholars now acknowledge that,...

  17. INDEX
    (pp. 361-367)