Transitional Justice.

• Author: Smiley, Marion

TRANSNATIONAL JUSTICE. By Ruti G. Teitel. New York: Oxford University Press. 2000. Pp. ix, 292. $35.

Ruti Teitel's (1) Transitional Justice and Ian Shapiro's (2) Democratic Justice come out of very different academic traditions. But they both develop a view of justice that might loosely be called pragmatic by virtue of its treatment of justice as a value that is simultaneously grounded in practice and powerful in bringing about social and political change. Moreover, they both use this shared pragmatic view of justice to provide us with two things that are of great importance to the study of transitional justice and democracy in general. The first is an explanatory framework for understanding how legal institutions and claims about justice function during periods of transition from authoritarianism to democracy. The second is a normative framework for generating principles of justice that can be used to democratize practices in all spheres of life: personal, social, economic, and political.

Teitel and Shapiro's general view of justice is very compelling on its own terms and particularly well suited to the efforts of those who want to think about justice practically without degrading it or treating it as merely superstructural. The pragmatic view of justice they develop does not, like its transcendental counterparts, force us to locate a universal moral principle called justice. Nor does it, like its more cynical realist counterparts, force us to accept the status quo or to resign ourselves to a world where justice is considered to be no more than a mere mask for power politics and economic interest. Instead, it allows us to treat our moral and legal values, including justice, as both historically situated constructs and powerful tools for bringing about social and political change.

While the pragmatic view of justice that Teitel and Shapiro develop is potentially more realistic and more useful than its transcendental and Marxist counterparts, it is not all that easy to substantiate in particular cases. Indeed, it is .very difficult to substantiate in particular cases, since it requires us to view particular notions of justice as grounded in particular social and political practices and to show how these notions shape, maintain, and change the particular communities of which they are a part. Not surprisingly, very few of those legal and political theorists who now call themselves pragmatists actually get around to the required level of historical interpretation and empirical analysis, and those who do tend to focus on values that are obviously institutional in nature, such as property, rather than on those values such as justice that, while in dire need of contextualization, appear too far removed from practice to be grasped as anything other than universal truths. (3)

Indeed, outside of John Rawls' recent avowal of pragmatism in his revised theory of justice, (4) very few of those now writing on justice attempt to understand justice as both grounded in, and powerful over, social and political practice. Instead, they generally fall back on either an idealist notion of justice, according to which justice is above, albeit applicable to, politics, or a realist notion of justice, according to which justice is so steeped in politics that it has no power to shape, maintain or change social and political institutions. In other words, they generally fall back on the very realist/idealist divide that Dewey and other pragmatists spent so much effort on putting to rest.

Both the realist and the idealist notions of justice have, admittedly, the advantages of simplicity in most of their many guises -- advantages that pragmatists can only envy from afar, since their own analyses are necessarily messy. But neither of these two notions of justice is as attractive as its adherents suggest that it is. The realistic notion of justice -- or at least that which treats justice as politics -- appears to be empirically sound. But it is too flat in its determinism to grasp the various ways in which justice as an ideal exerts power over the social and political practices of which it is a part. Hence, while it manages to avoid the traps of idealism, it does not in the end live up to the very standards of realism that its advocates rightly place at the center of our attention.

The idealist notion of justice is, in its most abstract formulation, coherent. But it cannot as so formulated help us to figure out what justice looks like in particular contexts. Nor can it show us how to balance justice claims with the practical constraints of institutional life. For, to do so, it would have to incorporate into itself both the details of particular spheres of life and the rules according to which particular social and political institutions are now governed. In other words, it would have to allow itself to be determined, if only in part, by the very contingencies of social and political practice that it is supposed to be free of as a transcendental value.

Interestingly enough, those idealist notions of justice that now appear to have a great deal of substance do so because those who articulate them assume as givens a variety of historically and culturally particular institutions and practices. Rawls himself acknowledges the dependence of his own principles of justice on the historically and culturally particular practices of Western democracy: liberal individualism, market economics and secularism. But he does not provide concrete connections between his two principles of justice, on the one hand, and these particular practices, on the other. Nor does he tell us how they operate together. Hence, in the end, he confronts the same dilemmas of application that other idealists face in their efforts to develop normative theories of justice that are practical.

All of this suggests that both the purely idealistic and the purely realist notions of justice have serious drawbacks. The purely idealist notion cannot be translated into practice without smuggling historically and culturally particular norms and institutions into itself. These norms and institutions call out for justification and undermine the transcendental and universal identity of justice itself. The purely realist notion, on the other hand, cannot cope with the fact that justice is itself a governing practice that has power over the very institutions of which it is a part. Nor can it make sense of practical ideals in general.

Not surprisingly, these drawbacks become particularly obvious, and troublesome, in cases of transitional justice -- for example, in cases where a particular regime is trying to move from authoritarianism to democracy, or in cases where efforts are being made to correct injustices within existing institutions. In these cases, justice cannot possibly be viewed as transcendental or universal, since it is, at least in its worldly guises, constantly in flux. Nor can it be viewed as a mere reflection of the status quo or of prevailing power relations, since it is frequently a powerful ideal in altering prevailing power relations and in democratizing institutions and practices that were in the past undemocratic.

In these cases, we would appear to be in need of a notion of justice that not only bridges the idealism/realism divide, but that treats justice in the following ways: first, as part of institutional life, rather than as an ideal imposed from above; second, as infused with the practicalities of institutional life, rather than as tainted by them; third, as manifested differently at various stages of history and within distinct social and political institutions; and fourth, as a powerful tool for bringing about social and political change. In other words, we would appear to be in need of a notion of justice that views justice realistically while preserving its standing as a powerful ideal -- a notion of justice we might call pragmatic.

How might we articulate such a notion of justice? How might we use it to explain and to argue normatively about justice in transitional regimes and in cases where we wish to move beyond the status quo within existing institutions? Ruti Teitel and Ian Shapiro provide us with intelligent, creative, and compelling answers to these questions, first by developing a notion of justice that is both realistic and normatively powerful, and then by using this notion of justice within their own richly detailed studies. Teitel focuses on the nature and functions of transitional justice in various democratizing regimes of Eastern Europe, Africa, and Latin America. Shapiro develops a principle of democratic justice that is both grounded in various spheres of life, both public and private, and powerful in rendering these spheres of life more democratic than they are now.

1. TRANSITIONAL JUSTICE IN PRACTICE

Teitel begins Transitional Justice by making clear that in cases of transitional justice, like in cases of "ordinary" justice, law does not determine politics. Nor does politics determine law. Instead, the two shape each other within a dialectal relationship that is mutually constructive. Hence, we cannot view law in transitional contexts as a mere product of economic interests or political circumstances in the way that, say, critical legal theorists do. Nor can we, like idealists, view law as outside the boundaries of transitional politics. Instead, we have to view law as produced by, and powerful over, both transitional politics itself and the more particular norms ostensibly associated with it. How can we do so? What does transitional justice look like in such a dialectical framework?

According to Teitel, while transitional justice shares many of the characteristics of other legal systems, including its valuation of the rule of law and its emphasis on regularity, it takes on special transitional qualities by...