4 - Transitions as States of Exception: Towards a More General Theory of Transitional Justice

Summary

INTRODUCTION

The study of transitional justice is usually confined to a specific type of transition: the transition from a non-democratic (conflict) state to democracy. This may reflect a greater demand for knowledge and tools to help forge and consolidate democracies, than interest in the techniques that are used to turn a democracy into an autocracy. Even concerning democratic transitions, however, general theories are scarce. Since Ruti Teitel's groundbreaking book Transitional Justice no serious attempt has been made to devise a general theory on the role of the law in democratic transitions. On the contrary, it has been argued that constructing a general theory is not feasible because, as Jon Elster argues, transitions are too diverse, or because justice in times of transition is not fundamentally different from justice in normal circumstances, and thus does not merit its own separate theory, a position defended by Eric Posner and Adrian Vermeule. This lack of theoretical or philosophical endeavour might also be connected with the fact that transitional justice is, as a distinct field of academic inquiry, relatively young (although most of its elements have been studied separately for a long time) which makes comprehensive overviews difficult.

In this chapter, I will nevertheless put forward a rudimentary theory of transitional justice that also includes non-democratic transitions. Expanding the theory of transitional justice to include all fundamental political transformations will make this discussion more general and thus more scientifically interesting and possibly more reliable. This theory will be restricted to legal justice, and therefore considers primarily legal and pseudo-legal phenomena, although these limitations are not very strict. I will discuss the following questions: What legal mechanisms are at work in transitional periods? Is there some kind of regularity, e.g. are there patterns or even laws governing the possibilities of a system of law in dealing with and bringing about a transition?

These are not normative questions, and they are therefore not dealt with in a normative fashion. Normative ideals are driving forces behind any transition, and therefore many scholars rightly scrutinize those ideals according to normative criteria, but not all theories of transitional justice must necessarily be normative. Normative policy or theory may benefit from the results of factual or analytic research of an economic, political, social or philosophical nature which signals pitfalls, incongruities, practical problems or contradictions. For this kind of research it is essential not to take sides with any particular interpretation of any particular political ideal.