These two books contribute to the vigorous international debate concerningways in which fledgling democratic societies in transition from authoritarianregimes or civil conflict reckon with grave past wrongs committed by governmentsor their opponents. Since 1990 Ruti Teitel, the Ernest C. Stiefel Professorof 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 newlyestablished International Center for Truth and Reconciliation and richlydeserves her reputation as the premier scholar and consultant on truthcommissions.
Both authors describe the variety of tools -- such as national and internationaltrials, investigatory bodies, memorials, reparations, and constitutionalchanges -- that societies and international bodies have employed to addresshuman rights violations. Hayner focuses on the work of more than twenty-onetruth 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 nationsemploy to address past political wrongs, such as criminal sanctions, historicalinvestigations, reparations, administrative acts (like purges of publicofficeholders), and constitutional changes. Equally knowledgeable aboutLatin American and Eastern European transitions, Teitel also considerssuch frequently neglected cases as post-Soviet Russia and post-Civil WarUnited States.
Both Teitel and Hayner argue that when societies choose to reckon withpast wrongs, they intend numerous results, some backward-looking and someforward-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 findthat there is no universally "correct" blueprint. Instead, societies haveunique historical legacies and contemporary challenges, and what is impracticalor inappropriate for one generation may become possible and desirablefor a successor.
The volumes differ with respect to their standpoints, style, mode ofargumentation, and -- of interest to readers of this journal -- their stancetoward ethical appraisal. Teitel executes her theoretical approach onthree levels. She offers a "phenomenology" of the ways in which societiesapply broad categories of tools to break with an evil past and evolvetoward a liberal democracy. She advances an explanatory thesis ("transitionaljurisprudence") to argue that transitions involve the rule of law lessas a matter of due process, regularity, and predictability than as a causallyefficacious and creative "mediation" between past authoritarianism anda liberal future. Teitel contends that in liberal transitions law is deeplyaffected 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 ofpostmodern relativism: "Transitional Justice begins by rejectingthe notion that the move toward a more liberal democratic political systemimplies a universal or ideal norm" (p. 4).
Although her language ("socially constructed" truth and "predicatesfor meaningful change") is often distracting, Teitel is at her best whenshe applies her considerable erudition to illuminate a nation's legalresponses to its ugly past. But what is missing from Teitel's accountis the moral world. Although she views her own theory as "a newnormative conception of justice" (book jacket), she uses "normative" notto suggest action-oriented judgments of what should be done but ratherto convey the causal and strategic link between transitional means andher assumed goal of liberal democracy. She fails to appreciate how a criticaland reasonable morality would enable her (and social agents) to identify -- asHayner does -- several general goals that no society should permanently neglect,and also precisely why some societies have done a better job -- made morallybetter compromises -- than others in reckoning with past wrongs. WheneverTeitel comes close to endorsing nonlegal "normative sources, such as morals"(p. 228) or to offering her own ethical assessments of a particular society'sefforts, she veers away. With no argument, Teitel insists that legal normativeresources bring more "controlled," "measured" changes than do moral ones(p. 228).
Finally, because Teitel presupposes that moral assessments of past wrongsmust adhere to some Platonic ideal of justice, she fails to recognizethat moral norms are neither absolute, history-transcending principlesnor mere artifacts of a particular culture. They are, I would argue againstTeitel, 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 ethicallypermissible means to reckon with past wrongs. Unable to free herself fromthe ghost of legal positivism, Teitel is left with no basis for urgingsocieties to pursue and balance goals (such as fair punishment or liberaldemocracy), to make the morally best compromise, or to combine tools topromote good ends.
Hayner has no such blinders. Adopting an action-oriented and morallysensitive rather than a detached, academic standpoint, she explicitlyemploys normative standards to assess the strengths, limitations, anddangers of official truth commissions relative to other tools. For Hayner,truth commissions are "official [and short-term] bodies set up to investigateand report on a pattern of past human rights abuses" (p. 5). At theirbest, 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 neitherunderutilized nor overloaded with functions that other tools can do better.Recognizing, like Teitel, that prior beliefs and values influence thesearch for truth, Hayner resists Teitel's tacit conclusion that no "sociallyconstructed" commission report is more accurate than any other.ÀInstead,Hayner urges commissions to define their goals precisely in order to obtainimportant and comprehensive truths about institutional causes and individualperpetrators of atrocities.
A society considering forming a truth commission would find Hayner'sbook the best guide available. She offers some surprising details of lessonslearned alongside her nuanced analysis and thoughtful suggestions forcriteria concerning the establishment of a commission, the general formit should take, and necessary supplemental institutions. In this volume,Hayner examines and begins to defend the ethical goals that transitionalsocieties should attempt to achieve, each in its own way. One hopes thather future work will develop further the idea that self-determinationgains in moral legitimacy as it increasingly issues from widespread, public,and democratic deliberation.
