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This chapter sets out to unpack a number of assumptions and principles on which the mainstream transitional justice approach (normal model) is based. It gives particular attention to Pablo de Greiff’s ‘normative conception of transitional justice’, which provides an important backdrop against which my pluralist reading unfolds in the subsequent chapters. Moreover, this chapter places the book’s argument in relation to larger ongoing critical debates within the field.
This chapter explores the place of compromise in transitional justice. While all-pervasive in politics, compromise is a neglected topic, almost a non-topic, within the current transitional justice literature. The chapter is an attempt to reverse this tendency and rehabilitate the notion of compromise. If, as pluralists hold, we are often faced with cases of hard moral choices where, whatever we do, something of value is irreparably lost, then the best we can hope for is some kind of acceptable compromise between clashing goods. The question about the limits of compromise thus features centrally in this chapter. How far should transitional societies go in their willingness to compromise? When is a compromise acceptable, fair, guided by principle, and when is it rotten to the core, simply illegitimate? To what extent is it acceptable to compromise deeply held values such as justice and truth for the sake of other equally important values such as, say, civil peace and democracy? While doubtful that we can settle such issues once and for all, the chapter identifies a range of questions that should be part of the collective conversation about when a political compromise is acceptable and when it is not. The discussion begins, however, with a concrete historical figure, the communist leader Joe Slovo, who played a critical role in South Africa’s negotiated transition from apartheid to democracy. Slovo’s reflections on the nature and limits of compromise in the South African context serve as a central reference point for my discussion throughout this chapter.
This chapter discusses the place of conflict in transitional justice. Building on a range of historical real-life examples, it argues that conflict is an important rather than incidental part of many, if not all, transitional justice processes. The chapter initially focuses on value conflicts and then turns to conflicts of interests (political power, offices, money, etc.). Drawing on recent realist work in political theory, the chapter argues that it is time to give politics its due and idealisation a rest in transitional justice. This is not an argument against ideals, but against an approach that is idealistic in the wrong sense, in such a way as to suppress, erase from view, real experiences of conflict. Towards the end, the chapter explores recent attempts in the transitional justice literature to take conflict more seriously, particularly Christine Bell’s account of transitional justice as bargaining.
There is a memorable line by ancient Greek poet Archilochus: ‘The fox knows many things, but the hedgehog knows one big thing.’ Drawing on this metaphor made popular by Isaiah Berlin, this book sets out to ‘think like a fox’ about transitional justice in an intellectual environment largely dominated by hedgehogs. Critical of the unitary ‘hedgehog-like’ vision underlying mainstream discourse, this book proposes a pluralist reading of the field. It asks what it would mean for transitional justice to constructively deal with conflicts of values and interests in societies grappling with a violent past. And what would it mean to make meaningful room for diversity, to see ‘the many’ rather than just ‘the one’?
There is a memorable line by ancient Greek poet Archilochus: ‘The fox knows many things, but the hedgehog knows one big thing.’ Drawing on this metaphor made popular by Isaiah Berlin, this book sets out to ‘think like a fox’ about transitional justice in an intellectual environment largely dominated by hedgehogs. Critical of the unitary ‘hedgehog-like’ vision underlying mainstream discourse, this book proposes a pluralist reading of the field. It asks what it would mean for transitional justice to constructively deal with conflicts of values and interests in societies grappling with a violent past. And what would it mean to make meaningful room for diversity, to see ‘the many’ rather than just ‘the one’?
This chapter offers a pluralist reading of transitional justice built around three meanings of pluralism. The first is value pluralism – the idea, dear to Isaiah Berlin, that values are irreducibly manifold, potential conflicting and frequently incommensurable in such a way that they cannot be ranked or weighed on any single scale. The second meaning of pluralism is cultural pluralism. It refers to the fact that there are many different cultures, many different collective ways of life, none of which can claim superiority. While insisting on the possibility of a cross-cultural conversation around core values, the proposed pluralist approach rejects the normal model’s tendency to reduce transitional justice to one set of (Western) cultural forms. The third form of pluralism briefly considered is legal pluralism, meaning the coexistence of competing legal orders. Discussing Rwanda’s experience with the so-called gacaca courts, the chapter suggests a pluralist understanding of the rule of law flexible enough to accommodate cultural variation while remaining committed to what I take to be its universal core. The chapter ends by proposing a pluralist method for thinking about transitional justice, which is linked to basic commitments referred to as sense of reality, anti-monism, situated thinking, decolonised cosmopolitanism and fallibilistic mentality. The chapter argues that these commitments can help mitigate a number of problematic trends in contemporary transitional justice discourse and practice.
This paper examines what prevents us from legally enforcing the moral imperative of protecting human rights during military operations carried out for distinctly humanitarian purposes. The answer, I argue, lies not in familiar objections to bringing the law into greater congruence with morality, but in international law's indeterminacy regarding the use of force. Preserving stability within the nascent international legal system comes at the cost of a law that eschews the protection of individual rights even in cases in which the protection of human rights is what justifies military action. The tension between state sovereignty and the protection of human rights thus not only generates well-known controversies about the lawfulness of military intervention. It also prevents us from devising laws to protect human rights during wars whose very purpose it is to stop human rights violations. Protecting human rights during humanitarian interventions may thus remain an undertaking as quixotic as it is morally urgent.
The Death Penalty's Denial of Fundamental Human Rights details how capital punishment violates universal human rights-to life; to be free from torture and other forms of cruelty; to be treated in a non-arbitrary, non-discriminatory manner; and to dignity. In tracing the evolution of the world's understanding of torture, which now absolutely prohibits physical and psychological torture, the book argues that an immutable characteristic of capital punishment-already outlawed in many countries and American states-is that it makes use of death threats. Mock executions and other credible death threats, in fact, have long been treated as torturous acts. When crime victims are threatened with death and are helpless to prevent their deaths, for example, courts routinely find such threats inflict psychological torture. With simulated executions and non-lethal corporal punishments already prohibited as torturous acts, death sentences and real executions, the book contends, must be classified as torturous acts, too.
In the same intellectual league as Grotius, Hobbes and Locke, but today less well known, Samuel Pufendorf was an early modern master of political, juridical, historical and theological thought. Trained in an erudite humanism, he brought his copious command of ancient and modern literature to bear on precisely honed arguments designed to engage directly with contemporary political and religious problems. Through his fundamental reconstruction of the discipline of natural law, Pufendorf offered a new rationale for the sovereign territorial state, providing it with non-religious foundations in order to fit it for governance of multi-religious societies and to protect his own Protestant faith. He also drew on his humanist learning to write important political histories, a significant lay theology, and vivid polemics against his many opponents. This volume makes the full scope of his thought and writing accessible to English readers for the first time.