Transitional Justice: A Conceptual Map

Abstract

The term “transitional justice” refers to formal attempts by postrepressive or postconflict societies to address past wrongdoing in their efforts to democratize. I focus in this chapter on the following question: what are the appropriate standards of justice to use when evaluating various legal responses to wrongdoing in transitional contexts? This is a question about the general standards or principles that any response to wrongdoing must meet in order to qualify as just. I argue in this paper that to date there is no satisfactory answer to this question. I first provide an overview of the pragmatic and moral challenges confronting transitional communities that explain why “ordinary” expectations of justice will not be satisfied. I then critically discuss two general ways of conceptualizing transitional justice: as a compromise and as restorative justice. In compromise views, transitional justice entails the balancing of specific (retributive/distributive/corrective) justice-based claims against competing moral and/or pragmatic considerations. At the core of the limitations with compromise and restorative justice views is a failure to acknowledge the context-sensitive nature of claims of justice. This failure matters because ignoring the background context presupposed by theories of justice, I argue, undermines distinctions between kinds of justice and, as a result, the normative point for making such distinctions in the first place is undermined. The most promising theoretical route to explore is the idea that transitional justice is a distinctive kind of justice. However, this idea remains under-theorized and in need of greater conceptual clarification and articulation.

Keywords: transitional justice, compromise, retributive justice, justice international, restorative justice, reconciliation, democracy, Aristotle

JEL Classification: Z18