Unspeakable Truths: Confronting State Terror and Atrocity, Priscilla B. Hayner; Transitional Justice, Ruti G. Teitel [Full Text]
Ethics & International Affairs, Volume 15.2 (Fall 2001)
November 6, 2001
These two books contribute to the vigorous international debate concerning ways in which fledgling democratic societies in transition from authoritarian regimes or civil conflict reckon with grave past wrongs committed by governments or their opponents. Since 1990 Ruti Teitel, the Ernest C. Stiefel Professor of Comparative Law at New York Law School, has written perceptively about "transitional justice" -- a term she used long before it became popular. Priscilla Hayner, an independent researcher, is codirector of the newly established International Center for Truth and Reconciliation and richly deserves her reputation as the premier scholar and consultant on truth commissions.
Both authors describe the variety of tools -- such as national and international trials, investigatory bodies, memorials, reparations, and constitutional changes -- that societies and international bodies have employed to address human rights violations. Hayner focuses on the work of more than twenty-one truth commissions, comparing their effectiveness to that of other tools. Gleaned from documents and interviews with truth commission personnel, victims, and perpetrators, the book's detail is both engaging and impressive. Teitel's canvas is broader: She describes the variety of means nations employ to address past political wrongs, such as criminal sanctions, historical investigations, reparations, administrative acts (like purges of public officeholders), and constitutional changes. Equally knowledgeable about Latin American and Eastern European transitions, Teitel also considers such frequently neglected cases as post-Soviet Russia and post-Civil War United States.
Both Teitel and Hayner argue that when societies choose to reckon with past wrongs, they intend numerous results, some backward-looking and some forward-looking. Their goals include determining the truth about the past, punishing offenders, supporting victims, reconciling conflicting parties, and promoting institutional reform and liberal democracy. Both also find that there is no universally "correct" blueprint. Instead, societies have unique historical legacies and contemporary challenges, and what is impractical or inappropriate for one generation may become possible and desirable for a successor.
The volumes differ with respect to their standpoints, style, mode of argumentation, and -- of interest to readers of this journal -- their stance toward ethical appraisal. Teitel executes her theoretical approach on three levels. She offers a "phenomenology" of the ways in which societies apply broad categories of tools to break with an evil past and evolve toward a liberal democracy. She advances an explanatory thesis ("transitional jurisprudence") to argue that transitions involve the rule of law less as a matter of due process, regularity, and predictability than as a causally efficacious and creative "mediation" between past authoritarianism and a liberal future. Teitel contends that in liberal transitions law is deeply affected by practical politics at the same time as it creatively "constitutes" the transition, enabling a society to bridge the past and the future. Finally, Teitel gestures toward, but does not argue for, a version of postmodern relativism: "Transitional Justice begins by rejecting the notion that the move toward a more liberal democratic political system implies a universal or ideal norm" (p. 4).
Although her language ("socially constructed" truth and "predicates for meaningful change") is often distracting, Teitel is at her best when she applies her considerable erudition to illuminate a nation's legal responses to its ugly past. But what is missing from Teitel's account is the moral world. Although she views her own theory as "a new normative conception of justice" (book jacket), she uses "normative" not to suggest action-oriented judgments of what should be done but rather to convey the causal and strategic link between transitional means and her assumed goal of liberal democracy. She fails to appreciate how a critical and reasonable morality would enable her (and social agents) to identify -- as Hayner does -- several general goals that no society should permanently neglect, and also precisely why some societies have done a better job -- made morally better compromises -- than others in reckoning with past wrongs. Whenever Teitel comes close to endorsing nonlegal "normative sources, such as morals" (p. 228) or to offering her own ethical assessments of a particular society's efforts, she veers away. With no argument, Teitel insists that legal normative resources bring more "controlled," "measured" changes than do moral ones (p. 228).
Finally, because Teitel presupposes that moral assessments of past wrongs must adhere to some Platonic ideal of justice, she fails to recognize that moral norms are neither absolute, history-transcending principles nor mere artifacts of a particular culture. They are, I would argue against Teitel, creatively evolving cross-cultural achievements (which emerge, in part, from international dialogue) that provide, among other things, reasonable criteria for a society to decide on basic goals and ethically permissible means to reckon with past wrongs. Unable to free herself from the ghost of legal positivism, Teitel is left with no basis for urging societies to pursue and balance goals (such as fair punishment or liberal democracy), to make the morally best compromise, or to combine tools to promote good ends.
Hayner has no such blinders. Adopting an action-oriented and morally sensitive rather than a detached, academic standpoint, she explicitly employs normative standards to assess the strengths, limitations, and dangers of official truth commissions relative to other tools. For Hayner, truth commissions are "official [and short-term] bodies set up to investigate and report on a pattern of past human rights abuses" (p. 5). At their best, they present an account of the nature and causes of past repression, contribute to legal justice, offer respect to victims, and recommend reforms. But even the best commissions (and there are many examples of failures) must be supplemented by other tools; truth commissions should be neither underutilized nor overloaded with functions that other tools can do better. Recognizing, like Teitel, that prior beliefs and values influence the search for truth, Hayner resists Teitel's tacit conclusion that no "socially constructed" commission report is more accurate than any other.ÀInstead, Hayner urges commissions to define their goals precisely in order to obtain important and comprehensive truths about institutional causes and individual perpetrators of atrocities.
A society considering forming a truth commission would find Hayner's book the best guide available. She offers some surprising details of lessons learned alongside her nuanced analysis and thoughtful suggestions for criteria concerning the establishment of a commission, the general form it should take, and necessary supplemental institutions. In this volume, Hayner examines and begins to defend the ethical goals that transitional societies should attempt to achieve, each in its own way. One hopes that her future work will develop further the idea that self-determination gains in moral legitimacy as it increasingly issues from widespread, public, and democratic deliberation.
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