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A Lockean Approach to Transitional Justice

Published online by Cambridge University Press:  05 August 2009

Simon Stacey
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Extract

Locke can speak interestingly to the problem of transitional justice, that is, how to deal withthose who committed human rights abuses under authoritarian regimes once those regimes democratize. The essay focuses mainly on the “hard case” of transitional justice, in which former members of an authoritarian regime retain significant capacity for violence, and so the ability to threaten the new polity if attempts are made to punish them. Locke's law of nature suggests that human rights abusers should be punished, although not at the expense of social stability.But it also grounds the apparently un-Lockean claims, consistent with some of Locke's occasional writings, that abusers qua eschewers of reason may be treated as beasts that do not enjoy natural rights, and that little account need be taken of the victims of such abusers. Using Locke's thought in this way both illuminates it and clarifies what is at stake in the debate about transitional justice.

Type
Research Article
Information
The Review of Politics , Volume 66 , Issue 1 , Winter 2004 , pp. 55 - 82
Copyright
Copyright © University of Notre Dame 2004

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References

I am grateful for comments on earlier drafts to Denise Dutton, Amy Gutmann, John Holzwarth, GeorgeKateb, Andrew Kuper, Donald Moon, Alex Tuckness, the members of the Princeton Political Theory Research Seminar and three anonymous reviewers from The Review of Politics.

1. Kritz, Neil J., “The Dilemmas of Transitional Justice,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes: Volume I- GeneralConsiderations, ed. Kritz, Neil J. (Washington, D.C.: United States Institute of Peace Press, 1995), p. xxxi.Google Scholar

2. At least, this is the limited version of the question I focus on. A broader version asks what should be done about the “severe human rights abuses that earlier authoritarian regimes,their opponents, or combatants in an internal armed conflict have committed” (Crocker, David, “Truth Commissions, Transitional Justice and Civil Society,” in Truth v. Justice: The Morality of Truth Commissions, ed. Rotberg, Robert I. and Thompson, Dennis [Princeton: Princeton University Press, 2000], p. 99; emphasis added).Google Scholar

3. For recent views on the use of historical works in discussing contemporary issues, see Skinner, Quentin et al. , “Political Philosophy: The View from Cambridge,” The Journal of Political Philosophy 10/1 (2002): 2–4;Google Scholar and Kateb, George,“The Adequacy of the Canon,” PoliticalTheory 30/4 (2002): 482–505.Google Scholar These citations are not meant to constitute an argument from authority for Locke's present-day relevance. Rather, the proof of the pudding is in the eating: that Locke's historical works are pertinent to transitional justice is a proposition this entireessay supports.

4. See Rotberg, Robert I., “Truth Commissions and the Provisionof Truth, Justice and Reconciliation,” in Truth v. Justice, p. 3.Google Scholar For argumentsthat the absence of political democracy would not much worry Locke, see Marshall, John,John Locke:Resistance, Religion and Responsibility (Cambridge: Cambridge University Press, 1994), pp. 215–16, 264, 271.CrossRefGoogle Scholar

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15. In general, see “Essay II” and “Essay IV” on the knowability of the law of nature.

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17. I am grateful to John Holzwarth for raising this question.

18. Locke is writing here about the law of nature in the state of nature, but what is true of it in the state of nature is true of it in civil society too. That transgressions of the law of nature go unpunished in civil society is as unacceptable as that they go unpunished in the state of nature. And in any case, Locke holds the more general view that “law is to no purpose without punishment” (ELN, p. 113).Google Scholar

19. Locke regards as forms of punishment both (1) inflicting harm asadeterrent and (2) the extraction of amends. To avoid the awkwardness of referring to “punishment for restraint” and “punishment for reparation,” I refer to “punishment” and “reparation(s),” and to “right(s) to punish” and “right(s) to reparation.”

20. True, the U.S. Constitution's Thirteenth Amendment allows“involuntary servitude” as “a punishment for crime whereof the party shall have been duly convicted.” (I am grateful to George Kateb for pointing this out.) Still, damnified persons do not benefit from the labor in U.S. prisons of those who committed crimes against them.

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24. Locke, , The Fundamental Constitutions of Carolina, in Political Essays, pp. 168, 171.Google Scholar

25. Both rights will obtain even if every overthrowing victim takes a post in the new government. In such a case, the same set of persons would hold the right of conquest against deposed-regime members in their capacity as overthrowing victims, and the right to punish in their capacity as members of the new government. Locke is no foreigner to multiple capacities of this sort. He mentions the power of “a father over his children, a master over his servant, a husband over his wife, and a lord over his slave,” and notes that these “distinct powers happening sometimes together in the same man,” it is still possible to “distinguish these powers one from another, and show the difference between a ruler of a commonwealth, a father of a family, and a captain of a galley” (§ 2).

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27. Locke suggests that circumstances may require the non-execution of the law, and that there should perhaps be a remission of punishment. He does not say that a trial should not be conducted. In the hard case of transitional justice, though, both trial or punishment would probably be reason enough for deposed-regime members to resort to violence.

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29. Locke, , “On Allegiance and the Revolution,” in Political Essays, pp. 308–309.Google Scholar A “general Act of Oblivion” would be an act of indemnity, preventing prosecution for old offences. Such an act—the “Act of Grace”—was passed on May 24 1690, indemnifying almost all of James II's supporters.

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38. But there is this difficulty: if the law of nature is as clear to everyone as Locke claims it is, won't deposed-regime members know that they have no claim to be treated with the same respect as rational human beings? And if so, won't they either remain extremely vigilant after any transition or, even, resist any kind of transition in the first place? I can do no more here than note these troubling possibilities. (I thank Andrew Kuper for noting this difficulty.)

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43. See Kritz, , Transitional Justice.Google Scholar

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45. McAdams, , “Preface,” in Transitional Justice, pp. ix–x.Google Scholar

46. See Hayner, Priscilla B., Unspeakable Truths: Confronting State Terror and Atrocity (New York and London: Routledge, 2001).Google Scholar

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48. Even Tully, who argues that the “only faithful attitude we can take to [Locke's theory] as a whole is one of nostalgia” also concedes that reading Locke reveals “where our thought runs parallel to Locke's, where his ‘style’ has left its mark on [us], and where our thought diverges” (Tully, James, An Approach to Political Philosophy: Locke in Contexts [Cambridge: Cambridge University Press, 1993], pp. 306,284).CrossRefGoogle Scholar