Claudio Corradetti, Nir Eisikovits and Jack Rotondi (eds.) Theorizing Transitional Justice (2015)
14 Pages Posted: 19 Mar 2016
Date Written: March 16, 2016
This paper provides a comparative analysis of retributive and transitional justice. At the core of both retributive and transitional justice is a concern with responding in a fitting manner to wrongdoing. I assume that any fitting response or action must recognize the basic, irrevocable, and equal dignity of all individuals, and that one kind of fitting response to wrongdoing involves holding perpetrators accountable for their wrongdoing. After outlining these shared commitments, I then go on to articulate the ways in which retributive and transitional justice differ. According to retributive justice, a fitting way to hold perpetrators of wrongdoing accountable is punishment. Philosophical theories of retributive justice explain why justice requires punishment, and why punishment is not merely revenge. Such theories generally assume that justice must be commensurate with the wrong an individual committed. Furthermore, it is considered appropriate for the state to respond to wrongdoing and inflict punishment because it is democratically authorized to enforce communal norms. These ideas make sense, I argue, in the circumstances of justice characterizing stable, just democratic societies. Transitional justice challenges these basic convictions about the nature of accountability in the aftermath of wrongdoing. The circumstances of transitional justice, which characterize societies in transition from conflict or repression to democracy, raise profound challenges to the authority of the state to deal with past wrongdoing. The appropriateness of punishment is also in doubt, given the collective and political character of wrongdoing and presence of pervasive structural injustice. In this context, processes of holding perpetrators accountable should be oriented towards the establishment of a general basic structure of relationships of equality, not just relationships of equality between perpetrator and victim. It is also oriented towards the establishment of the standing of the state to deal with wrongdoing.
Keywords: transitional justice, punishment, retribution, wrongdoing, accountability
Suggested Citation: Suggested Citation
Murphy, Colleen, Transitional Justice, Retributive Justice and Accountability for Wrongdoing (March 16, 2016). Claudio Corradetti, Nir Eisikovits and Jack Rotondi (eds.) Theorizing Transitional Justice (2015); University of Illinois College of Law Legal Studies Research Paper No. 16-19. Available at SSRN: https://ssrn.com/abstract=2748920