In November 1943 everything changed forever in Joseph Spring’s life. Born in Berlin as the first son of Polish Jews, he had left Germany in 1935 to hide from Nazi capture, first in Belgium and then in France. After years on the run from the Nazis, the sixteen-year-old was hoping to find refuge in neutral Switzerland together with his two cousins, Henri and Sylver Henenberg, who were at the time fourteen and twenty-one years old. Accompanied by a Catholic Frenchman, twenty-year-old Pierre Rollin, Spring and his cousins entered clandestinely into Switzerland from France during the night of 13–14 November. Once they had crossed the border in La Cure, the four fellow travellers passed by a farm where the lights were still on. There they asked for a phone to get in touch with a contact in Switzerland. The farmer misleadingly offered to take them to a nearby phone but, in reality, delivered Spring and the rest of the group to the Swiss border guards. Hoping for compassion, the three cousins presented to the guards not only their fake French passports but also their J-stamped documents and informed them about Henri’s tuberculosis. This made little impression on the border guards who sent the four back to France, warning them that they would be handed directly to the German authorities should they try again to enter the country.

Seeing no real alternative, Spring and his fellow travellers made again an attempt to cross the border two days after their first attempt. This time, they tried to avoid any contact with the local population and to move as quickly as possible from the border to the interior of the country. Proceeding at a slow pace to avoid the crunching noise of the snow, the group walked on the rails of the narrow-gauge railway connecting La Cure with Saint-Cergue and Nyon. After approximately an hour of walking, however, Spring and his fellow travellers were intercepted by Swiss border guards and immediately taken back to La Cure. These happened to be the same guards who had interrogated Spring and the others on their first border crossing attempt. Despite Henri’s young age and ill health and the life-threatening danger Nazism posed to Jews in those days, they had no intention to back away from their earlier warning. After a brief document check, Joseph Spring and his two cousins were handed over to the German officials at La Cure checkpoint. But the Swiss officials did more than that: they provided the Germans also with the J-stamped documents that identified the three cousins as Jews, thus sealing their fate. The three refugees were as a result deported to Auschwitz via the Drancy transit camp. Both cousins were killed on their arrival. Spring miraculously survived and emigrated after the war to Australia.

On 26 January 1998, fifty-five years after his deportation to Auschwitz, Joseph Spring sued the Swiss Confederation. The Federal Council, Switzerland’s seven-member governing body, rejected Spring’s claim for compensation in a split decision of four votes against three. The rejection was later confirmed by Switzerland’s highest court, the Supreme Federal Court in Lausanne. At the time of the verdict, I was working as a legal collaborator for Switzerland’s historians’ commission (commonly known as the ‘Bergier Commission’, after its president, the Swiss historian Jean-François Bergier) in charge of investigating Switzerland’s Second World War past. Switzerland in the late 1990s was facing a deep political crisis triggered by the international scandal over the ‘dormant accounts’ of Holocaust victims in Swiss banks. Virtually overnight, Switzerland’s popular self-image as a nation courageously standing up against Nazi Germany and heroically struggling for survival came to be fundamentally questioned. The Spring case vividly displayed all the human tragedy of a refugee policy which, as the Bergier commission put it, helped the Nazi regime to achieve its genocidal goals. By putting a human face on history, Spring’s story captured the public’s attention and made the headlines.

In striking contrast to the lively public debate, there was hardly any direct reaction from the legal profession, whether academics or practitioners, even after the Supreme Court handed down its verdict. As a recent law graduate, this struck me as an inexplicable omission given the seriousness of the stakes raised by the case. I, therefore, decided to write in my personal capacity a critical legal analysis of the court’s judgment in the case, which would later be published in a Swiss law journal in 2002. I argued that, in ruling as it did, the Supreme Court unduly prioritised a procedural ‘right to forgetting’ over ‘the duty to remember’ the dire consequences of Switzerland’s harshly restrictive refugee policy as one of the darkest chapters of the country’s history. The Court’s strategy to grant Spring the requested 100,000 Swiss Francs ‘through the backdoor’ by treating them as litigation expenses was not only insulting but beside the point. As Spring made it clear throughout, his legal case was never about the money: it was about seeing some belated justice done.

Or so I argued in my paper, and so I still believe. As I am wrapping up this book, however, I wonder whether by focussing so tightly on the Court’s judgment I somewhat lost sight of the broader picture of what was at stake in Switzerland’s dealing with its Second World War past in the late 1990s. Could it be that I placed excessive faith in the power of the Court to ‘solve’ the large-scale social and political issues that the case raised? Why, of all institutions, should a court of law be best or even well-suited to constructively engage with a nation’s burden of responsibility? Was ‘impartial judgment according to the rules’ really the issue here? Or wasn’t the real task before ‘us’, as a political collective, to engage an open political democratic debate about our past, present and future? A debate not only about how to respond to those who greatly suffered as a consequence of what the Swiss authorities did, or failed to do, but also about what this meant for Swiss society more than half a century later? Didn’t I miss out a whole social dimension of what it could mean to responsibly deal with this dark chapter of history here and now? Wasn’t I too single-mindedly focussing on one central vision, one system, so as to overlook the bigger historical, social and political dimension of the case?

I now feel that the primary responsibility for the highly unsatisfactory outcome of the Spring case lies with the political decision-makers. Instead of resorting to legalistic subterfuges, they should have seized this opportunity to engage a larger political debate about Switzerland’s wartime refugee policy and the question of responsibility attached to it. Collective responsibility crucially centres around the question of how political collectives respond to situations where they are implicated in the suffering of others. Failure to live up to this eminently political responsibility was, I would now argue, the single greatest failure of the Swiss authorities in their handling of this case and other similar cases. Even the establishment of the Bergier commission looks in hindsight less like the exercise of political responsibility and more like a strategy to buy time at a moment when Switzerland was facing harsh international criticism. Despite the thousands of pages of historical reconstruction offered to shed light on the past, the political debate that was supposed to happen after the end of the commission’s mandate never happened. Twenty years on, Switzerland’s Second World War past still remains, it seems, ‘a foreign country’ (to use David Lowenthal’s felicitous turn of phrase).

The way I think today about these issues has been considerably shaped by my journey with transitional justice. That journey began in New York City (NYC) somewhen in 2005. Thanks to a Swiss National Science Foundation (SNSF) scholarship, I had the opportunity to pursue a post-doc project on transitional justice at New York University School of Law. While working my way through the growing but still rather scarce normative literature on transitional justice, I stumbled onto a text by Latvian-born Oxford philosopher Isaiah Berlin titled ‘The Pursuit of the Ideal’. I still remember reading the text for the first time in my favourite East Village coffee shop, where I would spend a good part of my days reading, writing and conversing with friends. Reading Berlin on value pluralism turned out to be an eye-opening experience, fundamentally questioning many of my assumptions about ethics, politics and law.

Although I did not realise it at the time, this intellectual encounter with Berlin would have a lasting impact on my thinking about transitional justice. It was in particular through George Crowder’s illuminating interpretation of Berlin’s work as well as Jonathan Allen’s pluralist analysis of South Africa’s truth and reconciliation process that I began viewing transitional justice in another light. Berlin’s value pluralism helped me see a reality of value conflicts, hard choices and dilemmas that seemed to be comfortably overlooked in the theoretical transitional literature of those days. Berlin became a steady companion and fellow traveller on my transitional justice journey which would later take me to The Hague, Pretoria and then Geneva, where I would teach transitional justice and later co-direct with my friend Thomas Unger a transitional justice postgraduate programme.

During those years of research and teaching, I felt increasingly uneasy about ‘the normative turn’ transitional justice was taking. It was not that I was opposed to ‘normative’ (i.e., evaluative, value-oriented) work on transitional as such. On the contrary, I believed that one could not make sense of transitional justice until one took it seriously as an ethical and legal project (in fact, I had myself contributed in my own modest way to this project). My unease stemmed, rather, from what I saw as a tendency to ignore or explain away experiences of value conflict in transitional processes. The predominant view of transitional justice as a unified, harmonious system of ends (recognition, trust, reconciliation, the rule of law, etc.) and means through which to realise them came to strike me as disconnected from the messy political and moral realities of processes as conflicted and complex as ‘transitional’ Argentina, South Africa, Colombia or Tunisia. When discussing cases such as these with students from such countries ‘in transition’, I kept on wondering: Could it be that we had become so trapped in our own system, our vision of how things ought to be, that we had lost touch with the real world of transitional justice – its political struggles, contingencies, conflicts and compromises?

In thinking about these issues, it was Berlin’s famous hedgehog/fox distinction that really stuck with me. Drawing on the Greek poet Archilochus’s line ‘The fox knows many things, but the hedgehog knows one big thing’, Berlin distinguished between two fundamentally distinct ways of thinking about and approaching life. Hedgehogs, Berlin suggested, were drawn to one single vision, all-embracing and consistent, in terms of which they made sense of the world. Foxes, in contrast, were drawn to ‘the many’ rather than ‘the one’. They thrived in exploring the complexity of things and approaching the world flexibly from many different angles, deeply distrustful of any rigid belief system that claimed a monopoly of truth. Berlin left no doubt about where his sympathies sided. If there were a single message summing up Berlin’s philosophical position, this would be a good candidate: ‘Beware the hedgehog, join the fox’.

The fox/hedgehog distinction, however simplifying, strikes me as capturing something important about how the field of transitional justice has evolved since its emergence in the late 1980s and early 1990s. In the field’s early days, eclectic and politically versed ‘foxes’ seemed to play a prominent role in shaping the discourse of transitional justice. In this early period, such striking personalities as Chilean Truth Commissioner José Zalaquett or Argentinian legal theorist Carlos Nino insisted on the unavoidability of dilemmas and compromises in choices about transitional justice, warning against the inflexible application of principles to the detriment of a sense of balance. Thirty years on, however, one senses a general shift in attitude. As transitional justice has moved into the new century, the field seems to have lost patience with what is messy, ambivalent, hard to get one’s hands on. Transitional justice has become a heavily institutionalised, hyper-normative field of expertise wrapping itself in an aura of systematicity and code-like coherence. The ruler-of-the-roost posture assumed by the hedgehog seems to have won over the uncertainty of the fox.

This book is an attempt to bring the fox back into the conversation. I ask: What would it mean to see ‘the many’, rather than just ‘the one’, in thinking about and practicing transitional justice? By now, it should come as no surprise that Berlin and his notion of value pluralism serves as a major reference point for my discussion in the book. The pluralist view of transitional justice I defend denies that there can be any such thing as a single coherent system capable of yielding ‘correct’ answers to the problems of transitional justice. Transitional justice is conflict, and nothing is gained (and indeed much lost) by suppressing the tensions that unavoidably arise between the various goals and means of transitional justice. A pluralist account of transitional justice must, rather, face up to the reality of value conflict and allow for a critical deliberation about what is lost and what is gained by particular choices, about which losses are acceptable and which not. Or so shall I argue.

But if this book is to a significant extent a conversation with Berlin, it is also a conversation ‘beyond’ Berlin. This is particularly true of my treatment of politics. As I became interested in the politics of transitional justice, I increasingly found Berlin’s somewhat airy talk of political liberty frustratingly unconcerned with the crucial roles of conflicts, power, agency, interests and bargaining in politics. I increasingly felt that much of the theoretical conversation had been operating at a level too abstract, too aloof, to have something meaningful to say about the real politics of transitional justice. I thus tried to figure out what it might mean for transitional justice to be more ‘realistic’, more responsive to the ambiguous, circumstantial and generally messy realities of political transitions. In doing so, I took particular inspiration from political theorist Judith Shklar, whose book Legalism: Law, Morals, and Political Trials struck me as an incisive critique of a ‘legalistic’ mode of thinking about law (as abstract, ‘pure’, sealed off from the world of political conflicts), which, I felt, had had a pervasive influence on the transitional justice discourse as it had developed in the twenty-first century.

But there is also another sense in which this book seeks to go ‘beyond’ Berlin. Parts of this book were written as the movement called Rhodes Must Fall began with a protest action at the University of Cape Town on 9 March 2015 and quickly spread to other campuses in South Africa and then to Oxford University. That movement was about far more than the removal of a British colonialist’s statue. It was about bringing into the open institutional racism in university life. The ensuing controversy sparked also an engaged discussion within the programme I was co-directing at the time. The discussion with students and colleagues initially focussed on what it would take to decolonise our teaching of transitional justice. It quickly became apparent, however, that the discussion had to focus more broadly on the field of transitional justice itself. What would it mean for transitional justice to overcome its Eurocentric bias and engage with ‘other’ standpoints, outside the Western-centred canon? This book is, in part, my attempt to engage with this long-overdue debate.

So, who is afraid of the fox? One impulse that motivates those who cling to a hedgehog-like vision of transitional justice is, I suspect, the fear that if we lack a formula, metric or general rule for resolving social and political questions, we may lose our moral compass and withdraw into apathy and cynicism. I think this fear is groundless. Foxes can recognise that social life is messy and fraught with ambivalence and still place trust in the human capacity to make responsible choices, all things considered. Foxes can be hopeful without seeing the world through the rose-tinted spectacles of the optimist.

But make no mistake. Although this is a book ‘for foxes’, it’s not a book ‘against hedgehogs’. As I am putting the last touches on this preface, it appears that the gulf separating the fox from the hedgehog may be less wide than I first expected. I now view these two lonely figures not so much as rivals, competitors or opposites than as complementary sides of the same coin, fellow travellers along the same road. Recently, I have come across an intriguing remark by Nobel Prize-winning novelist Orhan Pamuk, which beautifully captures something of what I have in mind here. In an online interview with Italian journalist Marco Damilano, Pamuk talked about his obsession as a child with the idea that some doppelgänger, another Orhan, might be walking through the streets of Istanbul. There is something powerful, Pamuk suggested, about the thought that we are not ‘one’ but ‘many’, that each of us has a double constantly confronting us with contrasting ideas and perspectives, questioning our gaze and shaking up our certainties as we cross invisible borders. I like to think that this is the spirit of the present book.