Transitional Justice: A Conceptual Map

Krushil Watene and Jay Drydyk (eds.), THEORIZING JUSTICE: NOVEL INSIGHTS AND FUTURE DIRECTIONS (Rowman & Littlefield, July 2016), pp. 33-50.

University of Illinois College of Law Legal Studies Research Paper No. 16-34

28 Pages Posted: 15 Sep 2016 Last revised: 21 Sep 2016

Colleen Murphy

University of Illinois at Urbana-Champaign

Date Written: September 10, 2016

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

Suggested Citation

Murphy, Colleen, Transitional Justice: A Conceptual Map (September 10, 2016). Krushil Watene and Jay Drydyk (eds.), THEORIZING JUSTICE: NOVEL INSIGHTS AND FUTURE DIRECTIONS (Rowman & Littlefield, July 2016), pp. 33-50.; University of Illinois College of Law Legal Studies Research Paper No. 16-34. Available at SSRN: https://ssrn.com/abstract=2837231

Colleen Murphy (Contact Author)

University of Illinois at Urbana-Champaign ( email )

College of Law
504 East Pennsylvania Ave
Champaign, IL 61820
United States

HOME PAGE: http://faculty.las.illinois.edu/colleenm

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