Transitional Justice in Established Democracies

A Political Theory

S. Winter

• Publisher: Palgrave Macmillan
• Year: 2014
• ISBN:
  9781137316196
• Topic: Politics & International Relations
• Subtopic: Comparative Politics
• Index: Politics & International Relations

Truth commissions, apologies, and reparations are just some of the transitional justice mechanisms embraced by established democracies. This groundbreaking exploration of political theory explains how these forms of state redress repair the damage state wrongdoing inflicts upon political legitimacy.

1
Introducing State Redress

§1.1 Introduction

This is a book about ‘state redress’. Here are four examples:

Between 1929 and 1972, the Canadian Province of Alberta forcibly sterilized approximately 2800 residents it decided were unfit to reproduce. Authorized by the Alberta Sterilization Act (1928), the procedures targeted those with physical and mental disabilities. As part of a 1999 settlement, the Alberta government offered a ‘statement of regret’ and agreed to a redress package paying approximately C$142 million in compensation to about 860 survivors.¹

In 2004, Australia announced that it would provide ex gratia payments and special health care support to maintenance workers involved in repairs to the F-111C aircraft – the so-called Deseal/Reseal programme. During the period 1977–2000, maintenance work on the F-111C exposed inadequately protected workers to toxic chemicals. The workers developed high rates of moderate to severe morbidity.² In addition to special health care support, those who worked closely with the toxic chemicals were eligible for A$40 000, those with less intense exposure received A$10 000. After the programme was re-opened in 2010, the total cost is now approximately A$122.9 million.³

In 2008 and 2009, respectively, the United States House of Representatives and the Senate apologized for the enslavement and racial segregation of African Americans.⁴ The resolutions argue that a formal apology ‘will help bind the wounds of the Nation that are rooted in slavery and can speed racial healing and reconciliation …’. The apologies recommit America to the ‘… principle that all people are created equal and endowed with inalienable rights to life, liberty, and the pursuit of happiness …’. The resolutions conclude with a disclaimer, which neither ‘authorizes [n]or supports’ any claim against the United States nor serves to settle any claim.

In 2003, New Zealand apologized to Ngati Ruanui, a Taranaki-based iwi (a Maˉori people), for breaches to its Treaty of Waitangi obligations, waging war unjustly against the iwi in the 1860s, and wrongful land confiscations. As part of the redress settlement, the iwi and Crown agreed to a series of consultation protocols involving the iwi in the management of designated sites. The Crown also agreed to change the names of certain landmarks and vested the iwi with rights to fisheries, conservation lands and Crown-owned properties. The settlement includes property and cash valued at NZ$41 million. At the time of writing, the Ngati Ruanui claim is one of over thirty-seven completed treaty settlements, with a total value of over NZ$1 billion, not including administration costs, and with more to come.

The four examples are instances of ‘state redress’. In English, ‘redress’ does not always bear a moral sense and can refer quite broadly to any form of ‘putting something right’. My narrower use of the term describes practices of moral rectification in response to wrongdoing. Redress is a matter of rectificatory justice. An act of state redress responds to claims emerging from a state’s wrongdoing – state redress discharges an obligation the state has because it wronged the survivors. Hence, ‘state redress’ is directed by states towards those who are injured by state wrongdoing.⁵ It is a repair of state wrongdoing.

As the four examples indicate, states make redress in a wide variety of ways. In addition to apologies and material compensation, the examples include health care provisions, topographical name changes and administrative reform. Other forms of redress include legal amendment, public acknowledgment and memorialization, truth commissions, archiving survivor narratives and changes to history textbooks. This book offers a descriptive theory of these acts. Focused on the wrongs committed by the established settler democracies of Australia, Canada, the United States and New Zealand, it pursues the following thought: if state wrongdoing was justified by a prior legitimating regime and the values of that prior regime are no longer acceptable, then acts of redress should be understood in the context of the transition between regimes of legitimation.

§1.2 A legitimating (transitional) theory

Transitional justice is ‘a response to systematic or widespread violations of human rights’ in the context of regime change.⁶ Transitional justice enjoys significant academic and popular attention. The academic literature is dominated by the experience of a few paradigmatic polities, including Germany, South Africa, Argentina and the former Yugoslavian republics. These polities are described as transitional because they emerged from conflict or from non-democratic regimes. What Fionnuala Ní Aoláin and Colm Campbell call ‘paradigmatic’ political transitions involve the transfer of political power from one group to another, often through violence or the threat of violence.⁷ A representative volume, Transitional Justice in the Twenty-First Century, includes case studies from Africa, the Middle East and South America, plus Mexico and Columbia.⁸ It does not discuss any established democracies.

The four settler polities have not, at least not recently, undergone a ‘paradigmatic’ transfer of power. For that reason the accepted taxonomy describes state redress in these countries as ‘historical’, not ‘transitional’, justice. However, the established settler democracies are clearly using institutions and language shaped by the experiences of paradigmatic transitional practice. In 2006, Canada founded a ‘Truth and Reconciliation Commission’ for residential school survivors and the chapter noted above how the American Congress’s apology for slavery hopes to encourage ‘healing and reconciliation’. State redress involves garnering witness testimony and writing historical reports, official apologies, reparations, administrative reform and memorialization – all characteristic of transitional justice practice. These practical and discursive commonalities hint at what this book will show: that it is necessary to use the conceptual tools of transitional justice to describe redress politics in established settler polities.

The prospect of theorizing transitional justice within established democracies confronts numerous points of resistance. In the background lie challenges to a theory of transitional justice itself. There are reasons to doubt whether transitional justice forms a coherent body of practice and, from that perspective, the presence of apparently transitional justice practices within established democracies is evidence for the following ‘debunking’ argument: If settler states practice transitional justice, and these states are non-transitional, there can be nothing distinctive about transitional justice. Going further, if transitional justice is merely a concatenation of ‘ordinary’ forms of justice, it does not need a bespoke theoretical apparatus.⁹ That debunking argument might be more or less radical. One might simply claim there is no good reason to think transitional justice is a special kind of justice. More deeply, one might refuse to accept that normative concepts like justice are amenable to coherent and discrete descriptive accounts.¹⁰ I disagree with both claims and the first five chapters of this book make the argument that transitional justice forms a sufficiently discrete set of practices so as to require a bespoke theory.

But the present project is perhaps even more likely to be challenged by those who would defend transitional justice as a discrete field. Because settler polities are neither emerging from conflict nor becoming democracies, these critics say that institutions of state redress are ‘not established as part of a political transition’.¹¹ Adopted in 1787, the United States is often said to have the oldest ‘living’ constitution. Australia, New Zealand and Canada can each claim over a century of constitutional persistence. These are some of the world’s most stable polities. They are not undergoing the changes seen in paradigmatic transitions from fascism, communism and military authoritarianism. If the settler states are not transitional, the argument runs, they may deploy the forms of transitional justice, but they will not embody its substance.¹² Furthermore, it is not advisable that they should try. The structural injustices embedded in established democracies demand more substantive efforts than transitional justice’s temporary and exceptional institutions permit. For that reason, ‘non-transitional’ justice risks misleading survivors with shallow transitional rhetoric.

It is attractive to think that paradigmatic transitions are sui generis and impose exceptional political and moral demands that are categorically distinct from those of normal politics.¹³ Although the claim to exceptionality is well founded, I argue that settler states share this exceptional character. The key ingredient in transitional politics is a radical change in the legitimating regime. Legitimation is a major theme in transitional justice analysis.¹⁴ And when we look at the politics of settler democracies it will become apparent that they are experiencing the radical changes in legitimation that are characteristic of transitional politics. As a consequence of those changes, these polities confront certain problems. And because they tackle similar problems, state redress and transitional justice are similar kinds of responses, with similar goals, functions and institutions.

Both those who oppose theorizing transitional justice in settler polities and those who oppose the bespoke theorizing of transitional justice agree that the established democracy ‘remains a site of non-transition’.¹⁵ Hence, a theory of transitional justice in settler polities must show how these states are transitional and describe the problems of political legitimacy thereby produced. To put it bluntly, my argument requires a revolution. It might help to think of the book as being structured by the compound concept of ‘transitional-justice’. The first part of the book (Chapters 2 to 5) describes a transitional revolution in settler polities and the problems it reveals. The second part of the book concerns ‘justice’. It begins with a mini-introduction (Chapter 6) before describing the actual practices of administrative, corrective and restorative justice (Chapters 7, 8 and 9, respectively). Chapter 10 concludes.

As indicated above, it is often said that both transitional justice and state redress are means of legitimating the state. Scholarship in this area tends to represent legitimation sociologically.¹⁶ Following Max Weber, legitimacy is understood in terms of a population’s state-supportive habits, opinions and beliefs. In sociology, a ‘legitimating process’ is therefore understood as a way by which the population is encouraged to support the present political order. This sociological account of legitimacy corresponds to theories accentuating the ‘expressive’ character of state redress, representing it as a form of communication designed to engender the citizens’ support of the state. But that is neither the only nor the most interesting connection between state redress and legitimacy.

The argument of this book understands legitimation as a matter of reasons, where the term ‘legitimate’ and its variants refer to ‘reasons that support political authority’. Much more will be said about this in later chapters, so an outline sketch is sufficient here. A central problem in political theory (it might fairly be said to be the central problem) is the justification of political order. In the area of political theory known as ‘the theory of the state’, legitimacy refers to the reasons that justify the exercise of political authority. Legitimacy theory tries to explain how a political order can be authoritative. It is this book’s central contention that we should focus upon how state redress repairs the damage that authorized wrongdoing inflicts upon political legitimacy.

State redress responds to authorized wrongful acts of state, what I call ‘authorized wrongdoings’. That fact is important, for political authority lends state offences a distinctive character. The state presumes that political directives can give people a reason to act; that states can create a special kind of reason. One consequence of this power is that political authority can render otherwise wrongful acts permissible. It is permissible for states to harm citizens using means, such as incarceration, not permitted to private citizens. Moreover, states can, through unjust laws and regulations, do wrong in ways private agents cannot. These unique powers explain why state redress must be understood in political terms and why it must concern matters of citizenship, the practice of democracy and the political recognition that underpins the rule of law.

§1.3 Descriptive theory

In 1758 Carl Linnæus discovered something new about whales. Before that date, European biological science (including the first nine editions of Linnæus’ Systema Naturae) treated whales as a type of fish. At the time, animals were usually classified according to locomotion – whether they flew, walked or swam. Horses and hippos, cats and cattle were classed within Quadrupedia, animals that walk on four feet. Whales were placed within the class of swimming creatures – Pisces. Indeed, the attraction of classifying whales as fish is so powerful that whales continued to be treated as fish by the law, in public opinion and by many scientists well into the nineteenth century.¹⁷ As any parent could tell you, the non-fishiness of whales must be explained to every pre-schooler with a bent for inductive theorizing.

Linnæus investigated the matter of the whales’ classification by compiling evidence. He obtained a drawing of a female whale and her calf linked by an umbilical cord. Like the larger ‘quadrupeds’ including horses and hippopotami, but unlike (most) fish, whales give birth to live young. By consulting with sailors and reading a report of a whale autopsy, Linnæus learned that whales breathe air and have warm blood. Finally, whales suckle their young with milk produced by the female’s mammary glands. Again, these are characteristics shared by many quadrupeds and not by fish. Having determined that whales shared important features with other warm-blooded, live-bearing and mammary-feeding quadrupeds, Linnæus classified both groups together in Mammalia. This reclassification constituted an advance in human knowledge. Not only did we learn something about whales, the idea suggested further implications for evolutionary biology. Looking back, Linnæus’ discovery had significant political and economic implications.

Like Linnæus’ Systema Naturae, this book is a work of descriptive theory. Its emphasis is upon understanding what state redress is. This is perhaps unusual. Most previous discussions of state redress have either a prescriptive or causal bent; that is, they aim to tell us how states should respond to wrongdoings or they embed a particular redress programme into a historical narrative of survivor politics. In those efforts rectificatory descriptions are used to encourage readers to endorse a prescriptive or causal account. Because my project is, somewhat atypically, neither causal nor prescriptive, it will be worthwhile to say a bit more about my approach to descriptive theory.

State redress is a type of act. Hence, its description draws upon the theory of action. Although that theory is not a subject of this discussion, it certainly informs it, and I will start by clarifying a few assumptions. For those familiar with the jargon of speech act theory, it might be useful to think of this investigation in illocutionary terms, so long as one attends to important differences.¹⁸ An illocutionary function of a speech act is a thing that is done by the utterance. For example, when a suitable authority announces to a contracting couple, ‘I now pronounce you man and wife’, the statement performs the marriage. Similarly, an agent engaging in redress is invariably doing something; redress is a type of performance. It is important to recognize that speech acts are only part of redress. The larger category includes performative elements that are not primarily communicative, like paying compensation or the archiving of personal narratives.

This argument concerns the functions of redress. Functional analysis has been previously used to describe political apologies, but the focus upon communicative roles in that argument downplays the more fundamental role of enacting reasons.¹⁹ Earlier, I described transitional justice as ‘a response to systematic or widespread violations of human rights’. I take seriously the point that state redress is a form of justice; it concerns individuals receiving their due. State redress may be other things – it may involve transformative rituals, it may communicate trustworthiness, and it may have important implications regarding civic identities – but these other elemen...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• 1 Introducing State Redress
• 2 Towards a Political Theory
• 3 Transitions and Legitimation Regimes
• 4 The Old Order
• 5 The Problems of Authorized Wrongdoing
• 6 Transitional Justices
• 7 Administrative Justice and Canada’s Hong Kong Veterans
• 8 Corrective Justice and Japanese Americans
• 9 Restorative Justice and Australian Care Leavers
• 10 Conclusion
• Notes
• Bibliography
• Index