Justice in Times of Transition: A Reflection on Transitional Justice
Aolain, Fionnuala Ni, Constitutional Commentary
TRANSITIONAL JUSTICE: NOMOS LI. Edited by Melissa S. Williams, (1) Rosemary Nagy (2) and John Elster. (3) New York, New York University Press. 2011. Pp. xiv + 367. $60.00 (cloth).
Transitional Justice as a motif, a discourse and a practice continues to entice analysis from scholars, practitioners and policy makers. It is a field that has rapidly expanded, and that has both the fortune and disadvantage of being termed an "industry." The growth of transitional justice is both an opportunity and a warning, as the challenges raised by massive human rights violations and transitions from violence to peace or from repressive regimes to more liberal ones continue to preoccupy scholars and practitioners. Each new country specific context facilitates revisiting old trade-offs and concepts revealing new elements to transitional dilemmas.
In a collection edited by Melissa Williams, Rosemary Nagy and John Elster entitled Transitional Justice, a substantial attempt is made by a number of contributors to engage with theoretical and conceptual understandings of transitional justice, as well as to reflect comprehensively on the conceptual dimensions of selected transitional justice measures. The book is the product of the annual meeting of the American Society for Legal and Political Philosophy, in conjunction with the American Political Science Association, in 2005, but only brought to publication in 2011. With a self-confessed theoretical bent, vividly captured in the contribution by David Dyzenhaus entitled "Leviathan as a Theory of Transitional Justice," the essay collection contributes to the on-going theorization of the transitional justice field and there are some significant nuggets to be pulled out of its pages. However there is also some patchiness in the collection, with some variance in the strength and depth of contributions and thus their overall conceptual cohesiveness.
The opening essay, "Theorizing Transitional Justice," is by Pablo de Greiff, the recently appointed United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition and practitioner of transitional justice, as well as Director of Research for the New York based International Centre for Transitional Justice. The essay is derived from de Greiff's reflections on the under-conceptualized state of the field, his assessment of the limitations of other theory-oriented contributions, as well as his own theoretical contribution, seeking to cohere theoretical approaches to the analysis of transitional justice. De Greiff relays an emerging "common sense" around transitional justice practice, which one can take to mean greater convergence between all those engaged in writing and practice on the contours, imperatives and dimensions of the field. His preoccupations are driven in part by an identifiable frustration with piecemeal or "pick and choose" transition, whereby states and international institutions think that different parts of the transitional justice "package" can be traded off against one another. Instead he argues for a normative conception of transitional justice, the contents of which are advanced in this essay. In particular, he makes strong claims for relationships between the constituent elements of transitional justice, yielding in his terminology a "holistic" vision. De Greiff does so because he argues that normative theoretical work can guide action, and operate to make practical choices clearer or give their problematic elements greater exposure. Essential to his task is the identification of "two mediate goals, namely recognition and civic trust and two final goals, reconciliation and democracy ... " (pp. 33-34). He frames his overall argument by the claim that these four goals in tandem "[g]ive concrete expression through law-based systems to the necessarily more abstract notion of justice" (p. 34). De Greiff also attempts to mediate a middle ground through the contradictory views of transitional justice as comprising either "extraordinary" justice on the one hand, or merely constituting an untidy set of political compromises on the other. …