The Scarcity of Post-Totalitarian Justice

Totalitarian states could not tolerate the rule of law because they could not accept being constrained by anything, certainly not by laws and judges. A totalitarian state could not have a Supreme or Constitutional Court that could tell it to refrain from an action because it was illegal. The broad transformative goals of totalitarian states could not be defined or served, let alone constrained, by any set of rules and regulations. Totalitarian states had to plan and control all social interactions from above; they could not allow an open-ended due process with unpredictable uncontrolled results. In nontotalitarian states, civil law regulates the interactions between members of civil society independently of the state. But totalitarian states could not tolerate independent, spontaneous, unplanned, and uncontrolled civil interactions.

Totalitarian states maintained appearances by mimicking the rule of law: There were “judges” and “policemen,” courthouses and “lawyers,” “constitutions” and “law schools.” However, all were entirely subservient to the totalitarian state, eviscerated of their meanings in liberal contexts. Judges and policemen were low-level officials in the united executive hierarchy, trained and disciplined to follow instructions from above. The low salaries of judges, the dilapidated state of their offices and court houses reflected this status. Prosecutors had better salaries and facilities, as befitting their higher position in the same hierarchy. The authorities of the totalitarian version of prosecution, the procuracy staffed by procurators, were broader than those of the prosecution in liberal states to include investigation and the supervision of prisons and civil administration. It worked closely with the secret police, the paramilitary Communist Militia, and the Party. Scruton (Reference Scruton and Paul1990, 193) called this system “Potemkin legality.” The totalitarian legal system did not adjudicate civil law, torts, and administrative law.

Totalitarian states enacted many laws and regulations, but paid them little attention. Laws, especially constitutions, were declarative rather than normative; they declared ideals rather than made provisions for their realization or assigned sanctions for breaching them. The Soviet Union published a constitution in 1936, just before an extensive purge. That Soviet constitution, like its successors, was ignored. With the exception of Vishinsky, all those who participated in drafting the Soviet Constitution were executed as traitors (Arendt Reference Arendt1973, 394–395). In Hungary, “the socialist constitution adopted in 1949 was a parody of constitutionalism; it was intended by its framers as an ornament that could be at any time dispensed with rather than as a source or individual rights and obligations of the state” (Kis Reference Kis and Miklósi2003, 119). Legal institutions were mere facades incorporated in the outer shell of the totalitarian system, serving to fool foreigners and ordinary people who maintained pretotalitarian traditions of respect for the rule of law.

Lon Fuller (Reference Fuller1969, 33–94) outlined the main defining characteristics of the law: The law must be general. The law is impersonal; it cannot mention proper names, but must apply to classes of people. The law must be promulgated, especially when the laws do not reflect common morality. Though most people do not know most laws, they should be accessible to them. Publication of the laws enables their public criticism. The law must be prospective rather than retroactive, nulla poena sine lege. Laws must be clear and consistent. It must be possible for people to comply with the law; laws cannot require the impossible. Laws should remain constant. There must be congruence between official practice and declared rule. The authorities must follow the law and due process. The judiciary serves as an independent authority to ensure state compliance with the law. It interprets the law and determines when official action is inconsistent with it and then effectively stops it. Totalitarian “law” could not satisfy any of these conditions. There could not be general rules that fit all and only the enemies, real, potential, or imaginary, of a totalitarian regime. Some totalitarian “laws” were deliberately vague or remained unpublished so they could be used to provide pseudolegal cover for terror and oppression. Totalitarian “laws” were not prescriptive; they did not imply that the state should or would enforce and obey them; they were declarative, without provision for sanctions for their enforcement; for example, the Soviet Constitution included a declarative “right” for privacy, but no provision for its enforcement or sanctions against its violation. Without judicial review or appeal, the state could safely ignore its own laws. Totalitarian “laws” could be retroactive; past activities could become suddenly illegal and subject to sanction. Marriages and academic degrees could be annulled retroactively. The application of totalitarian laws was selective according to the interests of the ruling elite. The totalitarian elite were literally above the law, above the legal system and its strata of employees in a unified totalitarian bureaucracy. The bureaucratic superiors of the judges often decided in advance the results of trials. The more important the result of the trial, the higher up the hierarchy would the actual deliberation take place, from the Central Committee and the officers of the secret police down to the lowest officers of the Procuracy. If workers in the legal system, such as defense advocates, disobeyed their instructions, did not follow pre-prescribed scripts, they could be dismissed, disbarred, or even tried for obstruction of justice and subversion. The law became in the totalitarian state a ritualized formula to be uttered when somebody was punished (Scruton Reference Scruton and Paul1990, 201). The scripted nature of the judicial undue process under totalitarianism manifested itself in very high rates of convictions. In the Soviet Union guilty verdicts were almost never turned on appeal and only 1 percent of criminal cases resulted in acquittal. Since trials were scripted, there was no reason to conduct them unless conviction was a foregone conclusion. The oppressive nature of totalitarianism was manifested in a higher percentage of convicted criminals in society and harsher punishments for them than in countries with the rule of law (with the exception of the contemporary United States). By 1970, 1 in 50 adult Czechs and Slovaks was a convicted criminal (Scruton Reference Scruton and Paul1990, 206).

In late totalitarianism, laws were still declarative and had indeterminate relation to actual practices. Still, the regime became more predictable and mostly conformed to unwritten informal rules or at least regularities that had exceptions, but many if not most subjects understood. This was rule by law as distinct of the rule of law. People did not have rights, but had some likely negative liberties that could be arbitrarily rescinded by the dominating power. Normative enforced laws and unwritten regulations such as the late Communist Social Contract (nonresistance to the regime in exchange for guaranteed employment and minimal welfare and housing) were in the interest of the elite and provided some predictability for the subjects, while the elite were literally above the law, above the judicial system (Holmes Reference Holmes and Dworkin2004, 10). Judges continued to issue verdicts mostly according to instructions from hierarchical superiors, except in petty crime cases that were not of political interest.

Since the legal profession had a smaller role to play in totalitarian societies than in societies founded on the rule of law, totalitarian universities produced few lawyers. Under Communism, the best employment prospects for lawyers were in the secret police; less successful graduates joined the Procuracy, and less lucky ones became judges. The ratio of lawyers and law students to population in totalitarian countries was much lower than in countries with the rule of law. For example, during the revolutionary fifties, the entering class at the Law School of Charles University (the University of Prague) numbered 90 students. During late Communism in the seventies and eighties this number gradually increased to 450 and later 650. The entering class in 1934, during the democratic First Republic, was 5,000 (Stein Reference Stein1997, 191). These graduates made up a large human resource with a stake in the rule of law and the competence to administer it, whether or not they ended up practicing law, like Franz Kafka, for example. The last graduates of pre-totalitarian law schools in Eastern Europe had received their degrees before the Second World War, so by 1989 they were beyond retirement age. During late totalitarianism, admissions to law schools were influenced by political considerations, bribes, and family connections. Within law schools, “education” was totalitarian, composed of lectures without discussion and no required reading, research, or original creative writing. The school week consisted of as much as 30 hours of dictations. The students were not trained in interpretation, litigation, and rules of evidence. To graduate, the student had to pass an oral defense that consisted at best of memorized answers. Advanced degrees did not involve research, but an extra-rigorous exam. By contrast, authoritarian regimes did not interfere with education in law schools where students were exposed to constitutional jurisprudence and comparative law, before joining a system that could be subverted, compromised, and corrupted in practice (Linz and Stepan Reference Linz and Stepan1996, 248–249). When authoritarian regimes violated the law they did not typically use established institutions for this purpose, but created parallel police and prison systems and bypassed the judiciary. Consequently, in post-authoritarian states there were independent judiciary and police that could implement the rule of law, even against the former authoritarian elites, as in Argentina and Chile. There were Argentinean and Chilean judges, prosecutors, and policemen who could “cast the first stone.”

A “realist” understanding of “the law” recognizes that it has no limbs to walk on. The law is an abstract set of rules. Lawyers as judges and advocates, government bureaucracies, the police and bailiffs decide what the law is, how it should be interpreted, and what should be enforced. Law schools serve as the gatekeepers to the legal system. Therefore, their rules of admission are crucially important for understanding the character of the legal profession. To take a familiar example: a law degree in the United States, unlike in Europe, is a graduate degree, that is, it requires paying a higher entrance fee, four more years of tuition and deferred income. In late Communism, though political considerations were still paramount for admission, the expansion of law schools created opportunities for admission for bribes and so perfunctory admission exams were introduced, often as facade for the real selection process that involved paying for or otherwise obtaining an advanced copy of the exam. The content of legal education expanded somewhat from Marxist indoctrination to study of the history of law and memorizing legal texts. Sensitive topics such as comparative law and rules of evidence were not taught or were taught in a very different way than in law schools in liberal countries. Exams were rarely written, and research papers virtually unheard of. Once admitted, graduation depended on passing a final oral exam whose results reflected the personal and political relations between the student and the teachers more than acquired knowledge. The background of law faculty could vary; the common advanced degree of JuDr. took usually three months to complete, with an extra oral exam that was taken usually at the end of the summer, when a lawyer graduated in the spring.

The initially small number of lawyers in post-totalitarian societies constrained the replacement of incompetent and corrupt personnel in the legal system and the civil service. When the supply of lawyers was limited, they congregated in the more lucrative fields of their trade, privatization and restitution, political lobbying, and representing foreign companies to the exclusion of less well-paying jobs in the state sector, such as the judiciary, the police, and the civil service. Though the numbers of law schools and their graduates have increased markedly since the end of Communism, younger lawyers and judges were acculturated by their elders, producing as a result “more of the same.” Increasing demand for legal education created an opportunity for more corruption. To take a juicy example, in the fall of 1999, the senate of Prague’s Charles University called upon the dean of the Faculty of Law, Dušan Hendrych, to resign for involvement in selling the entrance exams to the law faculty. Each entrance exam was sold for 50,000 crowns ($1,500); if prospective applicants wished to have the answers as well as the questions, they had to pay twice as much. The scheme was discovered because one and only one of the sold answers was wrong. A considerable percentage of those who took the exam got all the answers right, except for that one, where they made exactly the same mistake. In an op-ed piece in the Czech quality daily, Lidove noviny, (October 7, 1999), a professor attributed the corruption of the Faculty of Law to a mafia-like organization of the faculty where teachers who were not involved in the corruption were too afraid to speak out and to a continuity with old Communist habits; the majority of law professors continued working after the 1989 Velvet Revolution. The professor dismissed the excuses of the University Rector and the Law Dean who held themselves irresponsible for the actions of “rogue elements” within the faculty. He compared their denials to a major who explains his drunken appearance to his sergeant by claiming that a drunkard vomited on him. The sergeant replies: “It must have been quite a brave drunk, because he also defecated inside your trousers.” Similar revelations about the law school at Palacky University in Olomouc a few years earlier and the University of Western Bohemia in Plzen some years later indicate systemic corruption. A major element in being waved in by the gatekeepers of the Czech legal system was consent to participate in corrupt transactions. Perhaps even more disturbing is that selling entrance exams or other kinds of academic corruption, such as selling degrees and plagiarism, were not prohibited by the Higher Education Law. Still, with more educational opportunities to study law, the bribing cost of admission has been going down, but so have the requirements for actual graduation. For example, in 2009, a new scandal involving the law school in the new University of Western Bohemia in Plzen divulged that several leading politicians received law degrees at that university without ever setting foot there.

Some legacies of totalitarianism in the legal system could be overcome faster than others. The constitution and the law code could be replaced quickly, easily, and cheaply. This required only the work of a few jurists, often including foreign advisers, who could borrow, adapt, transplant, and resurrect local and European constitutions and law codes. Written laws became normative rather than declarative, prospective, and clearer than totalitarian laws.Footnote ¹ Laws that were used for persecuting the political opposition were overturned and new laws that regulated democratic institutions were introduced. Laws that regulated the newly freed economy were introduced more slowly, partly because of ignorance and partly in deference to the interests of various sectors of the bureaucracy, politicians, and “businessmen” in keeping parts of the economy unregulated. Bankruptcy laws were slow to be adopted in many countries, as were laws that protected the interests of shareholders and other owners against managers. Lobbying remained unregulated, blurring the distinction between legitimate attempts to mediate between sectors of the population and democratic decision makers and influence peddling and bribing. In the absence of mandatory “cooling off” periods, politicians and bureaucrats could move from regulating private firms to working for them. Sometimes, there could be a period of overlap between the two, when decision makers were directly or indirectly owners of the companies they regulated. In countries where there was no political elite replacement, such as the Southern European post-Communist countries, or when the bureaucracy of the late-totalitarian elite were in charge of the process of making laws and regulations, they kept them vague to give the bureaucracy the power to interpret the laws according to their own interests, including, obviously, corruption in the administration of privatization, restitution, and licensing (Łoś and Zybertowicz Reference Łoś and Zybertowicz2000, 113).

From a constitutionally reductive perspective, post-totalitarianism was a constitutional break with the past marked by a new democratic constitution, a new founding of the state, and new rules for the sociopolitical “game.” Yet for a constitution in particular and laws in general to have the kind of pivotal role they have had in the United States since its founding, they must be respected, obeyed, and enforced. There must be significant normative correspondence between legal texts and social reality mediated by the judiciary. Constitutional documents and laws, however well-written, cannot enforce themselves; they cannot rule unless somebody is ruling according to them. After totalitarianism, there was no bureaucracy able and willing to enforce the law indiscriminately. Post-totalitarian bureaucracies found it challenging to think in impersonal, universal terms. Despite early hopes for an American-style liberal revolution in Eastern Europe, fantasies about a Russian mass liberal movement, and a Polish constitutional assembly with Walesa reenacting George Washington (Ackerman Reference Ackerman1992), there was no mass movement in support of a new constitutional order. The 1993 Russian constitution resulted from a long process of deliberation, only to be ignored by politicians and bureaucrats just as its Soviet predecessors had been. In continuity with totalitarianism, Russian informal social networks of patronage and exchange determined the distributions of social goods and the resolution of social conflicts more than legal declarations and constitutions (Aron Reference Aron2007, 232).

In the absence of alternative professional-legal elite, there was necessarily institutional continuity after totalitarianism. The people who were in charge of providing an ideological façade for totalitarian oppression were put in charge of enforcing the rule of law. Only about 10 percent of Communist judges left the profession immediately after the end of totalitarianism (Borneman Reference Borneman1997, 137–166). Since 1989, gradually, the ratio of lawyers who had not been a part of the totalitarian system to those who had been its products and servants has naturally been improving. Natural generational replacement also affected gradually the composition of the judiciary. However, these were slow and incremental processes. When post-totalitarian students entered law schools, they were admitted and educated by the late-totalitarian faculty according to its values. If they chose to enter established legal institutions (as distinct of the new democratic legislature or new private practices or work for foreign companies) they were selected by late-totalitarian office holders, started at the bottom of bureaucratic hierarchies, and were socialized in the cultures of these institutions. The career path of judges in Central Europe (including Germany) is separate from that of other legal professions. This ensures a greater degree of institutional cultural continuity and autonomy.

Since the promotion of judges within this exclusive career path has been based on seniority, the more senior judges in the higher courts (with the exception of the new Constitutional Courts) had been judges under totalitarianism, morally compromised, corruptible, docile in relation to elites, and obedient to the state.

After totalitarianism, judicial institutions acquired various levels of independence from the state according to the degree of democratization. As Holmes (Reference Holmes and Dworkin2004, 4–5) noted, post-totalitarian ruling elites can allow judicial independence for most judges in most cases because most cases do not affect their interests. Post-totalitarian elites influenced only the cases that affected their interests, often by referring them to “reliable judges.” Another way of indirectly controlling judges was through government officials who determined their remuneration, housing privileges, and so on. The legacy of subservience to the executive who is above the law with a legal license to engage in corruption survived the end of totalitarianism (Gallagher Reference Gallagher2005, 185–187).

After totalitarianism, the scope of judicial authority expanded to cover new areas of civil activity that had been unregulated or nonexistent before the end of totalitarianism, such as the enforcement of contracts, commercial law, and the protection of civil and human rights. New issues for judicial review emerged in the process of exiting totalitarianism: Retribution to the totalitarian perpetrators and restitution to their victims. The low quality of late-totalitarian judges was particularly problematic because they were required to adjudicate in types of cases in which they had no training, not even bad training; for example, tort. Especially in cases that the late-to-post-totalitarian judge considered hard, they fell back on their old habits of considering themselves representatives of the state and ruled in what they imagined to be the interests of the state and/or the late-totalitarian elite, even when they received no instructions from upon high.

Under totalitarianism, attempting to bribe a judge, when the judge was instructed by higher ups in the totalitarian hierarchy and could not affect the verdict more than the accused, was senseless. Once judicial institutions became independent, corrupting their employees became useful. Corruption could target not just judges but other employees of the judicial system who earned lower salaries. Case backlogs made the clerk who scheduled trials powerful. Once a verdict was given, implementing it required the cooperation of other employees of the court or the police. The police, when corrupt, had practical immunity from prosecution and so could be rented out cheaply partly because it did not assume risk. Greater independence, income, power, and authority for the judiciary did not imply necessarily more rule of law. One measure was the extent to which the old and new political and economic elites were still above the law, to what extent did judges rule not according to a reasonable interpretation of the law, but according to the interests of the elites, out of habit, deference, solidarity, fear, pressure, or financial reward. The near-universal impunity of politicians facing corruption allegation exposed in the free and private media indicates that politicians were still by and large above the law. The near-universal absence of retribution against totalitarian perpetrators despite attempts to prosecute is also a strong indication of the loyalty of the judiciary to the former regime and its elite. Selective prosecution of the enemies of the political elite, however, distinguished the countries that were still late totalitarian, such as Putin’s Russia. In post-totalitarian countries politicians usually could not or would not use the legal system to harass, selectively prosecute, and punish their political opponents. One reason is that in a democracy, yesterday’s opposition is tomorrow’s government and judges who harass it could find themselves at the wrong end of the stick after election time. By contrast, in late-totalitarian regimes such as Putin’s Russia, the opposition should have no chance to gain power, ever.

Though the new institutional designs of the post-totalitarian judiciary mimicked those of liberal democracies, post-totalitarian personnel continuity led to very different results.

According to Bobek the main problem was the continued self-perception of the judges as civil servants who should act in what they perceived as the interest of the state, even if they did not receive a phone call instructing them how to decide cases anymore. Judges, according to Bobek, continued to lack personal courage, moral fiber, intellectual competence – especially the ability to reason and argue from knowledge of the law – and personal responsibility. The incoherence between liberal constitutional and institutional legal structures, and personnel with a late-totalitarian world view and habits, was most obvious in new Constitutional Courts. All the post-Communist countries introduced strong Constitutional Courts to review all new laws, sometimes, as in Hungary, at the court’s own discretion and on its own initiative, to counter the totalitarian past that had no constitutional courts to limit the state. In the post-Communist context, its members could come either from the late judiciary or from the faculties of law schools. These were two of the most politically compromised professional groups under Communism. Their rulings were more numerous and significant than in consolidated liberal democracies because new democracies had to do considerable legislative work to set the foundation of liberal democracy. Constitutional courts protected the interests of the late-totalitarian elite and slowed down if not stopped crucial reforms (Sadurski Reference Sadurski2005).

The desirability of an activist, strong, and independent judiciary in the post-totalitarian contexts is a mooted issue among legal scholars. Some argued that in a political context where the state was weak and inexperienced, the parliament sometimes populist and irresponsible, and traditions of the rule of law recent, a strong, independent, and activist judiciary was important for protecting individual rights against the dictatorship of the majority and for protecting the rule of law against the temptations of governments and parliaments to suspend it and politicize the law and the legal system (Teitel Reference Teitel1997, 2034; Barak Reference Barak2002, 63). Others argued that greater independence for the post-Communist judiciary allowed it not just to defy the government and protect civil rights, but also to block legislative and policy reforms through judicial activism in the interest of the old totalitarian elite, protect judicial incompetence, and increase corruption.

Sadurski (Reference Sadurski2005) argued that a strong activist judiciary encouraged the populist tendencies of parliaments when the legislators acted in anticipation of judicial review overturning their more extreme legislation. This could lead to the perpetuation through institutionalization of anomalous post-totalitarian circumstances, since once Constitutional Courts gained extensive powers, they would not give them up just because liberal democracy consolidated. Some of the arguments of the most activist post-totalitarian Constitutional Courts undermined the very reason for their activism: In striking down legislation that attempted to come to terms with the totalitarian past, activist Constitutional Courts such as the Hungarian one claimed that their societies had already become “normal” and so unusual legislation was unnecessary. If so, argued Sadurski, their own unusual authorities in a European context were unnecessary as well.

Especially at the beginning of the transition process, strong constitutional courts whose composition was a compromise between the outgoing totalitarian regime and the incoming democratic government attempted to block aspects of the social and political transformations. For example, the Hungarian Constitutional Court attempted to block property restitution laws on the ground of violation of the equality before the law clause of the constitution, as not everybody would have benefited equally from restitution. A similar argument about equality was used by the Slovenian Constitutional Court to block restitution as discriminating between those with larger and smaller claims and those who filed for them and those who did not (Sadurski Reference Sadurski2005, 199). The Hungarian Constitutional Court also overturned all the attempts to extend the statute of limitation to cover crimes committed during the bloodier period of Communist rule, including the initial mass murders during the establishment of totalitarianism and the repression that followed the 1956 uprising (249–258).

Sadurski (Reference Sadurski2005, 259) suggested that the difference between the Czechoslovak and later Czech Constitutional Court and those of Hungary and Poland laid in the perception of legal continuity with the Communist past in the latter, and the assertion of Communism as a period of lawlessness in the former. The difference between Poland and Hungary and the Czech Republic emanated from the origins of the post-1989 constitutional changes and the selections of the members of the Constitutional Courts. In Poland and Hungary the outgoing Communists were able to influence both the composition of their Constitutional Courts and their wide authorities. In Czechoslovakia, by contrast, though the authorities of the Constitutional Court have been extensive as well, its composition reflected that of the post-Communist parliament that elected it, and so it has supported generally the decisions of that parliament at least as far as dealing with the legacies of Communism have been concerned. Kis (Reference Kis and Miklósi2003, 271–277) demonstrated the legal inconsistency in the interpretational doctrines of the Hungarian Constitutional Court. Kis did not attempt to explain these inconsistencies by external political factors. But in discussing the 1995 ruling of the Hungarian Constitutional Court against austerity measures enacted by parliament, he used an appropriate formulation: “the belief that the Court merely gave free rein to its political biases when it invalidated almost one quarter of the budgetary cuts, were not altogether ungrounded” (Kis Reference Kis and Miklósi2003, 286).

The longest lasting legacies of totalitarianism are cultural, in the realm of habit and custom. Since they are part of the fabric of everyday life, they are performed unreflectively and uncritically and acquire their own momentum. During totalitarianism, violations of the rules and regulations of the totalitarian state were part of the fabric of everyday life. It was practically impossible to get along without violating some rules or regulations, at the very least in illicit exchanges of scarce goods and services beyond the realm of state-sanctioned allocations and set prices. Since the state could not satisfy all the needs of its subjects, they had to resort to black market exchanges to obtain the necessities of life. This was systemic, necessary for the very survival of the system that prohibited it. Since salaries were low, the subjects of totalitarian states incentivized each other to provide services by giving each other presents or bribes, and the conceptual distinction between them was vague. The legacy of this era has been a popular ambiguous approach to the rule of law, as distinct of morality and ethics. State laws and regulations were not respected because too often they had to be violated or circumvented. While everybody recognized that murder or rape or informing on fellow citizens were immoral, the borders between extortion, bribing, and exchanging presents remained vague.

Scarce Justice

Totalitarian legacies imposed constraints on the possibilities of justice; they made it scarcer than in other historical contexts. Most philosophical discussions of justice present, interpret, defend, infer, or criticize ideal theories of justice, such as Plato’s or Rawls’s. Ideal justice theorists need not consider whether reasonable approximations of their systems are possible in actual social contexts because ideals exist on a different ontological plain. They answer the question “What is justice?,” not “What are the possibilities of justice in this concrete situation?” The ideal approach to the philosophical examination of justice has come under increasing criticism recently (e.g., Mills Reference Mills2005; Farrelly Reference Farrelly2007). For a theory of justice to be relevant in a political context, it must be able to exist on the human social plane and not just float in an eviscerated ideal universe. As Kant proved, moral duty must be a possible action; ought implies can (Kant Reference Kant, Guyer and Wood1998, 540–541 [A548/B576]). To have any normative force, a theory of justice must impose duties that its bearers can fulfill.Footnote ²

The possibilities of justice are constrained because of the universal scarcity of institutional resources necessary for the actualization of any theory of justice. The implementation and administration of justice require resources: human resources such as trained and honest judges, law-abiding police, and competent bureaucracy; material resources such as buildings, computers, and libraries; and less tangible resources such as time and information. As much as all these resources are necessarily finite, resources for justice are scarce. The normative choices people, institutions, and politicians make depend on the range of possibilities available to them. Scarcity determines that range of choices.

Post-totalitarian justice is characterized by extreme levels of scarcity of justice, far exceeding those in liberal societies that enjoyed the rule of law for generations. “Transitional justice” is not different in kind from ordinary justice; it rather occupies a particular end of the general spectrum of justice (Posner and Vermeule Reference Posner and Vermeule2003). I propose a general theory of scarce justice that explains the similarities and differences between “transitional” and “ordinary” justice. I use this model to explain public policies, laws, and regulations that were marked by extreme scarcity of justice that led to rough forms of justice (which I explain next). Such policies are typical of post-totalitarian justice, including simplified tax codes, collective criteria of guilt and victimhood, and general amnesty. In traditional democracies, rough justice is practiced usually only in extreme situations, in isolated subsystems of the legal system marked by scarcity such as affirmative action, mandatory sentencing, and laws requiring the publication of the names of sex offenders. In the next two chapters, I use the general theory of scarce justice I develop in this chapter to explain respectively rough retribution, sanctions against perpetrators, and rough rectification, compensations for victims in post-totalitarian societies.

I argue that the scarcity of resources required to produce justice is manifested in the relation between what I term its roughness (rough and accurate justice are opposing poles of the same property of justice) and the depth and scope of possible forms of justice. Ceteris paribus, increases in the accuracy (reduction in the roughness) of justice must come at the expense of its depth and/or scope and vice versa, increase in scope must come at the cost of increased roughness, though they are not linearly proportioned; equal measures of increase in one dimension do not come at the expense of equal measures of decrease in other dimensions. The accuracy/ roughness of justice is the degree of agreement between the results of attempts to implement a theory or principles of justice and the desired result according to a theory or principles of justice. The higher the agreement the more accurate is justice, the lower is the agreement, the rougher it is. For example, if the principle of justice we examine is that guilty criminals should be convicted and innocents should be acquitted, its accuracy is measured by the ratio of judicial errors, guilty who are acquitted and innocents who are convicted, to correct decisions in a judicial system.

The scope of justice measures the width of the application of the principle or theory of justice, globally (the broadest scope), nationally, locally, or to a sector of a population, for example, the scope of ordinary legislation is usually national.

The depth of justice expresses the gap between existing social norms and realities and the theory or principles of justice in the specified scope (without a specified scope, it is impossible to assess the depth). The deeper the gap, the scarcer will this form of justice be for any agency that attempts to implement and enforce it. People comply with a system of justice by a combination of habit, imitation, deference, respect for norms, social solidarity, and legitimacy (Holmes and Sunstein Reference Holmes and Sunstein1999, 175). Shallow justice relies on such compliance. For example, the right for life is shallower when almost all those within its scope accept it and actively assist the state in enforcing it than when people dispute each other’s right to live and share values of fragile honor vindicated by vengeance and sacrificial heroism. Progressive tax codes are much deeper in Russia and Italy than in Sweden or the United States, as measured by social legitimacy of tax evasion. When nearly all, but not all, comply voluntarily with the same principles of justice for whatever reasons, the few who do not gain a free-riding advantage. Preventing free-riding requires coercing and punishing the free-riders, otherwise they deepen justice by weakening respect of the principles of justice that keep together the fabric of just society to the point of tearing apart. When justice is too deep, it becomes impossible.

All possible types of justice have these three dimensions of scope, depth, and accuracy/roughness. Without these three dimensions, principles of justice are disembodied ideas floating in an ephemeral universe devoid of concrete actuality. “Justice” without scope does not apply to anybody. “Justice” without depth describes behavioral norms and social realities within the scope that require no enforcement or adjudication, making institutions of justice redundant. “Justice” without accuracy is arbitrary. Since there is a give and take between these three dimensions of justice given fixed scarce resources, there are alternative possible just worlds, depending on whether accuracy is preferred to scope and depth or vice versa. This is true of all theories of justice in all contingent contexts, especially of post-totalitarian societies where justice is very scarce.

Rough Justice

Any system of justice must be constituted of laws, rules, or regulations, implemented and enforced by institutions and individuals to avoid partiality and arbitrariness.Footnote ³ When people are treated as members of classes rather than as individuals, the accuracy of justice, its fit to individual circumstances, suffers (Goodin Reference Goodin1985, 142–143; Schmidtz Reference Schmidtz2006, 19–20). The interpretation of universal rules by people embedded in institutions inevitably generates errors. But without interpretation, it is impossible to connect the general rule with concrete reality. Institutional and individual interpreters may develop biased interpretations influenced by their interests or misinterpret the principles because their hermeneutic skills are limited. Individuals may lack judicious virtues and skills. The judicious virtues minimize influences on judgment that may increase the rate of error in the interpretation and application of laws and regulations; for example, emotional reactions such as compassion or anger are judicial vices that may cause a judge to be excessively forgiving or vengeful and insufficiently just. Huff et al. (Reference Huff, Rattner and Sagarin1996, 64) concluded that the most significant reason for the conviction of innocents is law enforcement’s vice of over-zealousness. Informally, Lord Hailsham defined judicial vice as “Judgeitis,” “pomposity and self-regard” (Mortimer Reference Mortimer1987, 13).

The accuracy of justice is the degree of agreement between theory and reality. The repeated application of any theory of justice to real situations has a rate of error. Some errors are worse, further off the mark, than others. Multiplying the rate of error by the degree of severity of the errors measures the roughness of the system of justice.Footnote ⁴ For example, according to a meritocratic principle of justice, just assessment of exams corresponds with merit. But deciding, in borderline cases, an A− or a B+ is prone to error. Worse errors are made by dogmatic, outdated, or plain stupid teachers who fail to recognize the originality of some students and grossly undervalue their groundbreaking research or overvalue the work of unoriginal students who echo their own opinions. Grading is roughest, arbitrary from the perspective of justice, when teachers assign good or bad grades irrespective of performance, for example because university managers evaluate teachers according to the grades they assign to their students, thus generating an artificial correlation between high grades and the professional success of the graders and an irresistible incentive for many teachers to assign grades arbitrarily from the perspective of justice. The adjacent social cost for this injustice is the devaluation of university degrees as signals bearing information about the merit of their holders (cf. Chapter 6). If we multiply the rate of error, what portion of the grades are in error, by their severity, how far off the mark they are, we can measure the roughness of the justice of this microsystem of justice in grading.

Even the best legal and judicial systems have a degree of roughness, not just in meting out too light or too severe punishments that do not quite fit the crime, but also in convicting innocent defendants and acquitting guilty criminals. To maintain their popular credibility and legitimacy, judicial institutions, judges, and lawyers tend to deny or suppress the inevitability of errors of roughness in the administration of justice, though they know better (Laudan Reference Laudan2006, 45–46). The inevitability of error in any human judgment is one of the strongest arguments against irreversible punishments such as capital punishment (Laudan Reference Laudan2006, 60). Laudan (Reference Laudan2006, 58–59) suggested that the high standards of accuracy that are required in capital punishment cases in the United States make the process so expensive that it is about twenty-four times more expensive to execute someone than to lock them up for life. It is difficult to infer and compute the rates of error in retributive justice since had cases of error been known as such, they would have been prevented in the first place (Forst Reference Forst2004, 58). Forst (Reference Forst2004, 5) extrapolated, from research that concluded that since 1976 in the United States 1.3 percent of death row inmates were wrongly convicted, that each year about 10,000 people are wrongly convicted in the United States.Footnote ⁵ Surveys of judges and lawyers estimate erroneous convictions at between 0.5 percent and 3 percent of convictions and erroneous acquittals at about 20 percent (Laudan Reference Laudan2006, 70–71). Due process and a system of appeals increase the accuracy of justice. Still, due process cannot eliminate error.

Debates about rates of judicial error and how to reduce them go back to enlightenment philosophy (Daston Reference Daston1988, 345 ff). Condorcet in his 1785 essay Essai sur l’application de l’analyse á la probabilité des decisions rendus á la pluralité de voix attempted to discover the probabilities that innocents are convicted and punished in error. He identified three independent variables: the number of members of tribunals (such as juries), the majority required for conviction, and their degree of “enlightenment.” Condorcet wanted to achieve a probability of error similar to that of a healthy man in his prime dying within 24 hours, or 1/144,768! His conclusion was that there should be 30 judges, each with a 0.9 enlightenment, and decisions should require a majority of 23. Condorcet wanted the risks of wrongful conviction and acquittal to be equal, though he recognized that the risk that a criminal would reoffend is lower than the damage from punishing an innocent. Laplace evaluated the error rate in his contemporary jury system as 65/256, and proposed that a special majority of nine out of twelve could reduce the error rate to 1/8,192.

The media has been exposing cases of judicial error, innocents who were incarcerated or even executed for crimes they had not committed and criminals who were acquitted or released only to commit again the same type of crime, especially child molesters (Hindman Reference Hindman1997; Nobles and Schiff Reference Nobles and Schiff2000; Filler Reference Filler2001; Murr and Sinderband Reference Murr and Sinderbrand2003). Hundreds of men who had been convicted of sexual crimes were proved innocent and acquitted following the introduction of DNA fingerprinting (Scheck et al. Reference Scheck, Neufeld and Dwyer2001). But even simple justice-enhancing DNA fingerprinting that can acquit men wrongly convicted of sexual crimes is a scarce resource. Hundreds of thousands of prisoners convicted of sexual crimes in the United States wanted to be tested, but the resources for administering the test were too scarce to allow most of them to do so (New York Times 2004). In the United Kingdom cases of judicial errors involving terrorism such as of the Birmingham Six, acquitted a decade and a half after being convicted as Irish Republican Army bombers, had a similar effect (Walker Reference Walker, Walker and Starmer1999, 47–49), as well as the 2006 campaign by the tabloid press to condemn judges who released sexual offenders who would reoffend. Such judicial errors had adjacent social costs: recidivist criminals who were acquitted became free to repeat their crimes. When innocents are convicted society pays the cost of their incarceration and when the judicial mistake is discovered and rectified, society pays reparations (unless the hapless victim of error has already been executed). Perhaps most expensive is the loss of faith in the judicial system that may deepen justice in general. Such scandals have led to discussions in criminology and law of errors or miscarriages of justice (Walker and Starmer Reference Walker, Walker and Starmer1999; Nobles and Schiff Reference Nobles and Schiff2000; Forst Reference Forst2004).

Errors may have different distributions. Robert Goodin (Reference Goodin1985) and Larry Laudan (Reference Laudan2006) noted that the direction of error, the ratio of false acquittals to false convictions can be determined by the severity of the rules of evidence and the burden of truth. For example, in civil cases, clear and convincing evidence, or even the preponderance of evidence, is sufficient for conviction. In criminal cases, the more severe “beyond reasonable doubt” is required. When the cost of error for society and the accused is low, such as for engaging in an activity without a license, the burden of proof falls on the defense. Goodin (Reference Goodin1985) concluded that the purpose of the criteria of evidence is to minimize the degree of error, which he defined as the frequency of errors multiplied by their cost. For example, the cost of executing an innocent is much higher than fining somebody erroneously for walking a dog without a license, and so the burden of proof and presumption of innocence are lighter in the latter.Footnote ⁶

Common law recognizes the roughness of justice implicitly in the principles of presumption of innocence, the benefit of the doubt, the assignment of the burden of proof, and the demand for proof beyond reasonable doubt in criminal law. These principles shift error in the direction of acquitting the guilty to reduce errors in the direction of convicting the innocent. The history of common law since Magna Carta may be interpreted as the struggle between the power of the state in the person of the king to shift judicial error in the direction of convicting the innocent, and the nobles and later commoners who strove to give the accused more legal rights to shift judicial error in the direction of acquitting the guilty. Historically, judicial rules shifted continuously against the state perhaps to compensate for the growing powers of the state since the bureaucratic revolution of the early modern era through its growth in size and technological capacity in the twentieth century. Totalitarian judicial systems where the presumption of innocence and the burden of proof were not respected displayed a radical shift in the direction of error toward convicting the innocent, manifested by a higher ratio of convictions to prosecutions, lower ratio of appeals to convictions, and lower ratio of overturned convictions on appeal in comparison with liberal judicial systems (Scruton Reference Scruton and Paul1990).

Larry Laudan argued that it is possible to increase the overall accuracy of verdicts in the United States by shifting the margins of error from acquitting the guilty to convicting the innocent, by changing the rules of evidence and proof. He believed that allowing the prosecution as well as the defense to appeal, admitting confessions even if the accused were not informed of their rights, admitting evidence that resulted from illegal acts such as seizure by the police, admitting some types of hearsay, and so on would lead to more accurate criminal justice because all the relevant evidence would be considered by the jury to produce a more accurate result (Laudan Reference Laudan2006, 136–137). I beg to differ. The process of administering criminal justice in common law systems is different from that of testing competing scientific theories against evidence. Trials are conducted in an adversarial system. In criminal cases the two sides can be grossly unmatched. Without the rules of evidence limiting the overwhelming power of the state, it could and indeed did shift the direction of error to convict the innocent, thus increasing the error rate. It is rare for any group that advocates a controversial scientific theory to have the full power of the state behind it, with the notable exceptions of Lysenko’s dominance of Soviet biology and Nazi “heroic psychology” (Cocks Reference Cocks1997). Reducing the burden of proof and the presumption of innocence would and indeed did lead to the judicial parallels of Lysenko’s biology, Stalin’s show trials. Second, in common law systems jurors are not and cannot be as good in evaluating evidence as the scientific community. The scientific community is composed of experts who spend years honing their skills at interpreting evidence. The scientific community has many more members who can examine obscure evidence and make correct inferences than a jury. It also has unlimited time to replicate experiments and deliberate. Since juries work under severe scarcity of time, human resources, and expertise, reducing their rate of error requires the assistance of rules.Footnote ⁷

Laudan (Reference Laudan2006, 145) was aware of these objections, but dismissed them. He undertook a thought experiment, asking the reader to choose: “If you were an innocent defendant in a criminal trial and you had to choose between … a Preponderance of Evidence standard and a prosecutor’s office on hard financial times or a very high Standard of Proof and a resource-rich prosecutor’s office?” A clear preference for the second settled the issue for Laudan. However, Laudan should have factored into this thought experiment the prior probability of prosecution of anybody, innocent or guilty, by a poor prosecutor’s office. Laudan’s thought experiment should have started with an innocent comparing facing Laudan’s dilemma prior to being accused of anything. The rational computation then would multiply the low prior probability of being prosecuted by a weak state (whether innocent or guilty) by the likelihood of conviction of an innocent by a weak state with lower evidential threshold, and compare the result with the prior probability of anybody being prosecuted by a strong state multiplied by the likelihood of conviction given a strong state and more demanding rules of evidence. From the perspective of an innocent who wishes to avoid conviction, I think the first option is clearly preferable because arrest and conviction are much less likely. The cruel punishments associated with medieval jurisprudence reflected attempts to deter when the large majority of crimes were not solved and prosecuted.

The scarcity of justice is expressed in its three dimensions. Ceteris paribus, at any point in time, it is impossible to expand justice in one dimension without contracting it in one or two of its other dimensions. These relations may also be described in terms of the virtues of theories of justice. These virtues partly correspond with Kuhn’s five virtues of scientific theories: accuracy, consistency, scope, simplicity, and fruitfulness (Kuhn Reference Kuhn1977; cf. Sarkar Reference Sarkar2007). Historically, these scientific virtues could come at each other’s expense; an increase in the scope of a scientific theory came at the expense of its accuracy or vice versa. The accuracy, scope, and fruitfulness of scientific theories are measured by their relations to the world. Consistency and simplicity are internal virtues. Accuracy and scope are shared virtues of scientific theories and theories of justice. Depth, which reflects required change in the world rather than its description, is uniquely normative, and fruitfulness, the discovery and explanation of new phenomena, is exclusively scientific. The internal virtues, consistency and simplicity, are shared by scientific theories and theories of justice. Consistency is obvious in the case of justice; a good theory of justice and legal system should not imply conflicting normative judgments. Simplicity correlates positively with scope and negatively with accuracy, since simple principles of justice can be applied broadly easily, but may be too simple to fit a complex reality and consequently generate inaccuracies. As David Schmidtz (Reference Schmidtz2006, 24) put it, a simple theory of justice is incomplete or inaccurate, a complex one may be unwieldy. Simple principles of justice can be applied broadly, but generate more inaccurate or rough interpretations than more complex theories. Kant proposed one golden rule of justice; and Rawls had two principles. Schmidtz’s basic idea is the internalization of otherwise external costs. Applying such general principles accurately to the complexity of life in the form of rules and regulations of action requires complex systems of rules that specify what is just even in unusual, special, or difficult circumstances and determine which of the many possible interpretations is correct. But complex legal systems have a narrower scope than simpler ones because complex regulations are costlier to implement and easier to circumvent by going through loopholes. If there is scarcity of competent, well-trained, or experienced judges and regulators, even more inaccuracies will occur when the regulators cannot understand the regulations. These considerations apply in particular to situations when justice is scarce, most notably in post-totalitarian societies.

Post-Totalitarian Scarce Justice

States where justice is most scarce must choose between limiting the scope of justice and accepting rough forms of justice. Ackerman (Reference Ackerman1992, 74–77) thought that broad-scope corrective justice was impossible after totalitarianism because of scarcity of human resources. The prosecution and the judges were not cooperative and new democratic governments could not create overnight an alternative judiciary. Ackerman (Reference Ackerman1992, 72) characterized post-totalitarian governments aptly as having “high moral capital, low bureaucratic capacity.” He did not consider the possibility of increasing scope by increasing the roughness of justice. Wolfgang Schäube, the West German politician who negotiated with East Germany after the fall of the Wall advised his colleagues to limit the scope of justice, concentrate only on the worst cases in East Germany and “err on the side of generosity over self-righteousness” (McAdams Reference McAdams2001, 167).

The scarcity of justice is not unique to post-totalitarian societies: Holmes and Sunstein suggested that states often limit the scope of justice by enforcing “universal” rights selectively, only when they are not expensive, and neglect them when costly (deep) because “enforcement is expensive, especially uniform and fair enforcement …. Rights are familiarly described as inviolable, peremptory, and conclusive. But these are plainly rhetorical flourishes. Nothing that costs money can be an absolute” (Holmes and Sunstein Reference Holmes and Sunstein1999, 43, 97). But whereas we can find limits on scope or roughness in various corners of the legal system in liberal legal systems, scarcity is the overwhelming feature of post-totalitarian systems of justice.

It is possible to increase the scope of justice by increasing its roughness. Under conditions of extreme scarcity of justice, administrative committees may replace judges, and computer programs may replace bureaucrats. Competent judges can make more accurate, nuanced, and sensitive judgments than bureaucratic committees. But in the absence of such judges, “[a] few crude, bureaucratically feasible reforms will do more justice, and prove less divisive, than a quixotic quest after the mirage of corrective justice” (Ackerman Reference Ackerman1992, 73). Experienced, honest bureaucrats are more competent to interpret theories and rules of justice accurately than contemporary software programs based on simple algorisms. Software programs are rough because they are simpler than the human condition, at least for now. In complex cases, competent and honest humans with sufficient time and resources to deliberate would produce more accurate justice. But when such qualified people are scarce or they do not have enough time, as in the case of parole committees, software programs that predict probabilities of recidivism of parole applicants are used in many U.S. states, though they are inaccurate (Walker Reference Walker and Starmer2013), just like other software programs can attempt to replace lawyers (Markoff Reference Markoff2011). Another unrelated advantage is that software programs do not take bribes to issue construction permits or business licenses or to pass an entrance exam to a university.

When the scope of justice is particularly broad, even mature and productive legal systems are forced to resort to measures of rough justice. For example, following the end of the Cold War, a flurry of new demands for restitution and reparations by World War II victims surfaced during the nineties. East European victims were no longer denied their claims because they lived in Communist countries and the United States ceased having a geopolitical interest in cementing friendships with Germany, Austria, and Switzerland at the cost of ignoring claims against their governments and big companies. Consequently, millions of new claims by slave and forced laborers and owners and heirs to identifiable properties such as bank accounts, insurance policies, real estate, and works of art were made. Subsequently, rough but broad scope justice had to be administered. As Stuart Eizenstat, who negotiated these forms of rough justice, concluded:

A particularly rough form of justice is collective. Collective justice distributes rights or duties, benefits, or sanctions to a class of people who share a property irrespective of everything else, thereby saving on the costs of individual adjudications while offering a broad scope of rough justice. The first legally defined and implemented case of collective guilt was after the Second World War, when scarce human resources and evidence led to the designation of the SS and the Gestapo as criminal organizations. Membership in these organizations was punishable irrespective of the actions individual members may or may not have committed. Post-Communist lustration was likewise an attempt to increase the scope of justice at the expense of its accuracy; it designated certain categories of former employees of the Communist secret services as a class that should be excluded from employment in the higher echelons of the civil service and the government (see the next chapter). Kaminski and Nalepa (Reference Kaminski and Nalepa2006) and Nalepa (Reference Nalepa2008) discussed lustration in similar terms to roughness. They suggested that erroneous acquittals and convictions are better criteria for evaluating “transitional justice” than conformity with the rule of law. Nalepa considered which bureaucratic procedures could increase accuracy and decrease the rate of erroneous lustrations, given extreme scarcities of information and rule of law.

Lustration, in its roughness and the attempt to circumvent the judiciary, resembles mandatory sentencing. Democratic legislatures enact mandatory sentencing to prevent judges from meting out sentences that the legislature considers too lenient. Mandatory sentencing is rough because it does not allow judges to use their knowledge of the unique circumstances of each case to accurately fit punishment to crime. For example, according to the U.S. “three strikes” law against drug offenders, soft drug users who have what is considered a commercial quantity of soft drugs, which may be a small amount they sell to few others in order to pay for their expensive addiction, just like drug barons, are sentenced for life on their third conviction. This law did much to help the United States catch up with Russian and Chinese rates of incarceration per population. Political lobbies attempt to use mandatory sentencing as a blunt and rough measure to force their vision of justice across what they perceive as judicial resistance. For example, some feminists and liberals demanded mandatory sentencing for some types of sex crimes (Rendell Reference Rendell2006; Kelly Reference Kelly2007), while some conservatives advocated mandatory capital punishment for murder (O’Sullivan Reference O’Sullivan1992) and for drug dealers (de Lama Reference De Lama1988), as is already the case in Singapore and other Asian countries. The closest measure to lusation in a mature democracy (the occupation authorities in West Germany and Japan after the Second World War implemented similar measures) was West Germany’s 1972 Berufsverbot enacted by Willy Brandt’s Social Democratic government. Facing a wave of political extremism and terror from left and right, the government enacted collective professional disqualification from government employment to individuals who “engaged in political acts detrimental to the constitution” (Judt Reference Judt2005, 471).

Rough collective corrective justice to the prisoners of totalitarian regimes achieved broad scope in general amnesties. Totalitarian judicial processes patently violated due process. Post-totalitarian retrials would have required an impossibly broad scope of justice. A rough measure of post-totalitarian justice was to issue a general amnesty. In a general amnesty all prisoners are released and rehabilitated: political prisoners, opponents of the regime who were convicted on trumped up nonpolitical charges, innocent citizens who were convicted because they were not granted due process, as well as convicted criminals who did commit the nonpolitical crimes for which they were convicted. General amnesty and rehabilitation were affordable instruments of rough justice.

Similar measures of rough justice have been enacted by traditional liberal democracies when facing scarcity of justice. When the U.S. Federal Government wished to institute deep and broad scope racial justice, it could not rely on the cooperation of state officials in the local executive and judicial branches of government, especially in Jim Crow states. Federal laws could demand of institutions of higher education to disregard race in their admission policies and employers to have color-blind hiring practices. But such laws would not have been enforced by many local officials. Instead, the U.S. federal government enacted and has been enforcing rough but broad-scope justice, affirmative action policies, to demand commensurable percentages of students and employees who belonged to legally constructed, traditionally discriminated-against groups to their share of the population. Rough justice was affordable since measuring percentages of bureaucratically constructed ethnic minorities could be monitored by the government, using the sanction of access to federal funds, grants, and contracts to enforce compliance. This rough justice has generated high rates of error: Some people who have been admitted or hired did not merit these social goods, whereas others have been denied goods that should have been theirs had admission and hiring been purely meritocratic. However, this rough instrument has allowed the implementation of a broad scope of deep justice that otherwise would have been impossible.

Convicted pedophiles have a higher recidivism rate than other serious criminals; prison terms deter or reform them less than they do other criminals. Therefore, prevention after release from prison is more essential for pedophiles than for other criminals. This is an issue of justice for children, protecting their rights, rather than retributive justice against the criminals who have already served their sentence. The cost of round-the-clock police surveillance of each released pedophile is prohibitive. Instead, a rough justice measure may require released pedophiles to register with their local authorities who publicize their identities. Neighbors then act as enforcers, as in the 1996 U.S. Megan’s Law (Hindman Reference Hindman1997; Filler Reference Filler2001), or Sarah’s Law in the United Kingdom. Such measures are rough because despite the higher-than-average recidivism rate of pedophiles, some may learn during their incarceration to bring their demons under control or become incapable of doing harm in the future, for example due to physical frailty. However, even this rough measure of justice has had a more limited scope than envisioned; in the United States half of released sex offenders did not register with their local authorities, who did not have sufficient resources to keep track of them (Murr and Sinderbrand Reference Murr and Sinderbrand2003). Similarly, since post-Communist governments did not have the resources to force their judiciaries to enforce lustrations, some post-Communist governments published or leaked lists of secret police officers, agents, and informants. As in the case of pedophiles, this constitutes very rough justice because the published lists do not consider individual circumstances. And as in the case of pedophiles, weak state organs passed on enforcement to society.

The tax code is one of the tools that governments can use to implement theories of distributive justice. Ceteris paribus, the more complicated is the tax code, the more accurately it can serve a desired distributive outcome (barring unintended consequences), but also the narrower will be its scope because richer or smarter people will take advantage of complex loopholes and poorer or less sophisticated people, who cannot understand a complex code or afford the services of accountants, will be disadvantaged. It would also generate social costs in the form of uncollected taxes and the social perception that sophisticated free riding pays off and goes unpunished. A simpler tax code is rougher because it contains fewer categories. But simple tax codes have a broader scope because the wealthy have fewer loopholes and average workers can understand it. The roughest possible fiscal policy that does away even with progressive taxation is a flat tax that eliminates the incentive for high earners to hide their marginally highest income and has no loopholes, exceptions, or special circumstances. Flat tax is particularly popular in weak states where taxation is a deep form of justice because citizens do not comply with paying taxes voluntarily. The choice is between broad scope and simple but rough fiscal justice and a more accurate and complex but narrow justice, where few pay exactly what they should and many circumvent the law (Ǻslund Reference Ǻslund2007, 116–119). Twenty-one post-Communist countries adopted flat tax policies that tax equally all income above a minimal threshold, an element of progressivism and an efficiency measure since it is not cost effective for the authorities to chase very low income earners for low returns (Appel and Orenstein Reference Appel and Orenstein2013). Supporters of flat tax in post-Communist Europe highlighted, in addition to the consequentialist advantages of increased competitiveness and higher projected tax revenues, that “a simpler tax system has lower administrative costs and is easier for citizens to pay and for governments to administer. In bureaucracies with low capacity like countries emerging from communism, a simple tax system has clear advantages” (Appel and Orenstein Reference Appel and Orenstein2013, 135).Footnote ⁸ Flat tax is enforceable even when human resources such as accountants are very scarce. It also has the social benefit of encouraging the creation of a law-abiding society with shallow justice and fewer free riders.

Scarce Justice over Time

The scarcity of justice is reflected in the relation between its depth, scope, and accuracy. All else being equal, in the short term, growth in one must come nonlinearly at the expense of the other. But all things do not remain equal. Over time, increases or decreases in the supply of resources for the implementation of justice may lead to simultaneous increases or decreases in the accuracy, scope, and depth of justice.

A long-term change in social morals and mores may decrease the depth of justice and release productive resources for the expansion of the scope or accuracy of justice or vice versa. The gradual pacification of liberal, law-abiding societies and the creation of a broad overlapping consensus on many aspects of justice after the Second World War have made many aspects of justice shallower. The changes American society has undergone, becoming more tolerant and less racist, have allowed some forms of justice to become shallower (Posner and Vermuele Reference Posner and Vermeule2003). Conversely, governments in societies that have gone through civil strife faced the task of implementing deep forms of justice that had been shallow prior to the outbreak of strife. There is a lower supply of justice in the former Yugoslavia, Rwanda, and Northern Ireland than before the outbreak of civil strife when members of different groups still respected some of the others’ rights voluntarily.

Economic growth and productivity increase the supply of justice. Many of the measures that states have instituted in the last century to reduce the roughness of justice, without compromising on its scope or depth, would have been impossible earlier. For example, the broad interpretation of due process in the United States by the Warren Supreme Court would have been impossible had there not been sufficient growth in the number of lawyers and public resources to grant each defendant the right to counsel (Forst Reference Forst2004, 13–16). The productivity of justice is affected by the efficiency of institutions in charge of administering it and by the qualities of the people who work there. Professional skills, virtues, and competences such as wisdom, foresight, and rational organization affect the supply of justice. If incompetent, ignorant, or confused judges, who do not observe due process, admit inadmissible evidence, exclude relevant evidence, or forget the proceedings of previous sessions, are replaced with competent ones, the supply of justice increases, and vice versa. Radical political revolutions are followed often by appointments, dismissals, purges, and promotions of judges, state bureaucrats, and law school teachers exclusively or chiefly on the basis of political loyalty. Politically reliable but incompetent administrators of justice decrease the supply of justice irrespective of political interferences.

Following growth in the productivity or the availability of resources for justice, states may be able to afford more accurate justice and address the inaccuracies of the past in corrective justice. The application of broad-scope but rough justice generates errors that may require corrective justice later, for example in paying compensations for internment during war, including redress in the form of compensation, restitution, rehabilitation to cover the medical and psychological costs of the error, and symbolic restoration of dignity (to borrow the categories of corrective justice of the South African Truth and Reconciliation Committee). “Criminal justice systems should be judged, inter alia, on the number of injustices produced by them in the first place, and, secondly, on their willingness to recognize and correct those mistakes” (Walker Reference Walker, Walker and Starmer1999, 61). Conversely, after practicing limited scope but accurate justice, once the supply of justice increases, society may wish to revisit older cases that were not adjudicated earlier, for example, in post-authoritarian countries such as Argentina and Chile or post-totalitarian ones such as Poland.

Justice may be imported or outsourced. Occupation authorities and international tribunals increase the supply of justice. Accurate and deep post-totalitarian retributive justice was executed chiefly by outsiders, occupation authorities as in the Nuremberg and Tokyo trials, international tribunals as those for the former Yugoslavia, and unification authorities in East Germany. Mixed tribunals, held on domestic soil with foreign participation may be the optimal option to maximize justice in the immediate aftermath of totalitarianism (Snyder and Vinjamuri Reference Snyder and Vinjamuri2003/4, 17–18). Yet, the scope of these imported forms of justice has been woefully narrow.

Meta-Justice

Since the choice between accuracy, scope, and depth of justice cannot be avoided, principles of meta-justice need to outline criteria for distributing scarce resources for justice between the goals of accuracy, scope and depth. To apply to themselves they will also specify whether the choice between accuracy and scope and depth itself is accurate but limited or broad and rough.

Generally, when such choices were debated and made, democratic politicians tended to prefer scope to accuracy, whereas human rights activists and lawyers tended to prefer accuracy to scope. In a broader philosophical context, these conflicting tendencies reflect what Max Weber and Karl Jaspers (Reference Jaspers and Ehrlich1986, 418) called “the ethics of social responsibility” versus “the ethics of moral conviction.” The ethics of responsibility is consequentialist. It justifies means by ends. The ethics of conviction is deontological; it is founded on our duty to respect the rights of others irrespective of the consequences. Ethical consequentialists would compute the likely effects of accuracy versus scope and depth, and so prefer scope and depth to accuracy. Kantian deontologists, like human rights absolutists, would give accuracy lexical priority over scope and depth. Deontology in its currently most popular form, theories of rights (Dworkin Reference Dworkin1977), focuses on the absolute rights of individuals that should “trump” all other considerations, most notably consequentialist ones. Rough justice can violate the absolute rights of individuals. For example, the absolute rights to due process or to be judged individually rather than as a member of a collective entity. Deontological theories of rights would give lexical priority to accuracy over scope and depth because the alternative would knowingly result in the violation of rights that should trump other moral consideration. Accordingly, deontologists often oppose measures of rough justice such as lustration, denazification, and Megan’s law.

Consequentialists measure the degree of justice in a population; they do not consider individuals and do not recognize moral absolutes. When evaluating a measure of rough justice, consequentialists, who wish to maximize justice, consider the marginal increase or decrease in justice likely to follow the rough justice measure by deducting the marginally higher degree of errors in justice multiplied by its scope from the marginally higher degree of justice that would result from the wider scope. If the value is higher than zero, consequentialists would support the measure of rough justice. For example, if all former employees of the secret police of a totalitarian state are excluded from participating in politics and occupying high civil service positions, the law will increase the scope of justice since the scarcity of justice in post-totalitarian states precludes individual trials. But it will also mildly punish some secret policemen who did not violate civil or human rights, for example, if they spied on the armed forces of foreign countries. If consequentialists reduce the unjust damage to the few from the justice done to the many, the result is a positive increase in the total amount of justice in society. Therefore consequentialists endorsed such measures of rough justice to which deontologists objected.

If the error rate is high and obvious, society may lose trust in the justice system (Forst Reference Forst2004, 7). The consequentialist computation must factor in indirect external social costs such as the delegitimization and loss of trust in the system of justice that could result from very rough justice. Rough justice could result in radical deepening of justice and an overall increase in its scarcity. Yet, loss of confidence in the institutions of justice, a deepening of justice, may also result from the opposite very narrow scope but precise justice, when a class of people who are patently guilty, such as the leaders and henchmen of a totalitarian regime, keep their spoils and remain beyond the scope of justice. This may lead to a much rougher forms of justice when vigilante groups take the law into their own hands, for example in France after World War II (Rousso Reference Rousso and Elster2006).

Consequentialist computations are always mentioned in the rhetorical context of political arguments in favor of rough justice: Crime prevention would be served from putting away the guilty, even if a few innocents are swept along. Lustration, denazification, and the exposure of the identities of released pedophiles should bar bad people from access to power, resources, and opportunities to repeat their crimes. As Posner and Vermeule (Reference Posner and Vermeule2003) noted, it is a common mistake to presume that “transitional justice” is exclusively about the past, retroactive or retrospective justice. The legislators who designed and enacted transitional justice were concerned often with consequences much more than the past.

Deontologists and consequentialists may agree on corrective rough justice, designed to correct mass violations of human, civil, or special (e.g., property) rights, such as general amnesty or rough restitution and compensation after the collapse of totalitarianism. Such rough measures of collective justice do not violate directly anybody’s rights (there may be indirect social costs to releasing criminals who may reoffend in a general amnesty and to compensating undeserving claimants at the expense of more worthy causes), so deontologists may not object to them. Deontology may have an advantage over consequentialism when information constraints make plugging in values to the consequentialist algorithm impossible. If it is impossible to reliably assess the consequences, how many people would be affected by an increase in the scope of justice and to what extent, and vice versa, how many people would fall victim to rough justice and to what extent, one might as well give up the attempt to compute consequences and do the deontological right thing rather than speculate (Elster Reference Elster and Kritz1995).