Negative Emotions and Transitional Justice

Mihaela Mihai

• Publisher: Columbia University Press
• Year: 2016
• ISBN:
  9780231541183
• Topic: Philosophy
• Subtopic: Political Philosophy

Vehement resentment and indignation are pervasive in societies emerging from dictatorship or civil conflict. How can institutions channel these emotions without undermining the prospects for democracy?

Emphasizing the need to recognize and constructively engage negative public emotions, Mihaela Mihai contributes theoretically and practically to the growing field of transitional justice. Drawing on an extensive philosophical literature and case studies of democratic transitions in South Africa, South America, and Eastern Europe, her book rescues negative emotions from their bad reputation and highlights the obstacles and the opportunities such emotions create for democracy. By valorizing negative emotions, either through the judicial review of transitional justice bills or the criminal trials of victimizers, institutions realize the value of respect and concern for all while contributing to a culture that is hospitable to democracy.

1

TRANSITIONAL JUSTICE

Optional or Imperative?

The new rulers (of transitional democratic regimes) also have a tendency, probably based on their feeling of moral superiority, to waste energy in what might be called “ressentiment politics” against persons and institutions identified with the old order. This would consist in petty attacks on their dignity and their sentiments.

—Juan Linz, The Breakdown of Democratic Regimes

Impunity is the torturer’s most relished tool. It is the dictator’s greatest and most potent weapon. It is the victim’s ultimate injury. And it is the international community’s most conspicuous failure. Impunity continues to be one of the most prevalent causes of human rights violations in the world.

—Mary Margaret Penrose, Impunity—Inertia, Inaction, and Invalidity

The question, then, is not whether to remember, but how.

—Martha Minow, Memory and Hate

Should societies deal with a painful past of violence and oppression? The attempt to provide a persuasive justification for an institutional engagement with the past has led to two major debates in the scholarship: Truth versus Justice and Stability versus Justice. Gradually, scholars of transitional justice grew to agree that the first of these two oppositions should be overcome. Truth and justice are now seen as compatible, complementary goals of a more capaciously understood project of transitional justice. However, the second debate is still dividing the field. Democratization cannot progress if we do not bury the past, the transitional justice skeptics claim. We must focus our energies on the construction of democratic institutions and laws.¹ Digging out the past can only antagonize society by providing enraged victims with a propitious occasion for political vendettas and scapegoatism. Negative public emotions should not be indulged, but rather suppressed in order to stabilize the ground for kick-starting the institutional reforms necessary to consolidate democracy.

This chapter seeks to overcome this second, enduring dilemma and give a clear positive answer to the question, Should societies open the books of past of abuse and oppression? The first two sections will provide the background for my engagement with the issue of justifying transitional justice measures. The first section (“Overcoming the Truth Versus Justice Dilemma”) reviews the Truth versus Justice debate and its solution in a complementarity approach to truth seeking and justice mechanisms as parts of a broader understanding of the project of transitional justice. I then turn to the second debate, Stability versus Justice, and engage the realist’s dismissal of transitional justice practices. Two arguments, one normative and one prudential, will be presented in support of an institutional engagement with oppression and violence (“Stability Versus Justice: Another False Dilemma”). In order to substantiate my proposal, I then put forth a more complex account of the circumstances of transitional justice that includes, along with the economic and institutional dimensions, a social-emotional element. The relationship between resentment and indignation, on the one hand, and the betrayal of legitimate moral expectations, on the other, is discussed in order to explain why such emotions are linked to the legitimacy of the democratic regime and, implicitly, to its stability (“Democratic Shifts and the Emotional Circumstances of Justice). Some preliminary suggestions as to how the exemplary institutional application of democratic norms might simultaneously recognize moral outrage and inspire victims, victimizers, and witnesses to internalize democratic principles of emotional expression constitutes the focus of “The Exemplarity of Institutional Normative Consistency.”

By following these steps, the chapter contributes to the arguments in favor of dealing with the past by disclosing yet another dimension of the circumstances of justice in transition: politically relevant negative emotions and their importance for both the legitimacy and the stability of any democratic order. Through a critical and in-depth engagement with the philosophy and sociology of emotion, chapter 2 will take further the proposal sketched here and thus strengthen a positive answer to the justificatory question.

OVERCOMING THE TRUTH VERSUS JUSTICE DILEMMA

Advocates of transitional justice defend the imposition of appropriate punishment on the guilty as a necessary step for the prevention of similar abuses in the future. The institutional (re)affirmation of the rule of law is thought to be a precondition for the further consolidation of young democracies, a way to show discontinuity with the abusive practices of the past,² a means to awaken legal consciousness, and to ensure some diffuse deterrence effect.³ By establishing individual responsibility, courts are supposed to undermine a culture of impunity,⁴ legitimize the new democratic regime,⁵ and restore the moral order of society and the dignity of victims.⁶

Criminal proceedings are also meant to guard against a cycle of violence and hatred. Should outraged victims be denied any measure of acknowledgment, they might decide to punish those responsible for their suffering extralegally. Uncontrolled outbursts of public passion would thus undermine the prospects for peace and democracy.⁷ By listening to the alternative stories of victims and perpetrators, courts are in a good position to establish a certain kind of truth, give some satisfaction to the aggrieved, and contribute to collective memory building.⁸

However, numerous scholars claim that criminal proceedings are not fit to move a society toward reconciliation and social healing. In the aftermath of major suffering and violence, people need to learn how to live together and trust one another again.⁹ The divisiveness of retributive practices, the strictness of rules of evidence, and the high likelihood that courts had been “tainted” under the previous regime have made critics plead against prosecutions and in favor of alternative mechanisms: truth (and reconciliation) commissions (TRCs).¹⁰ The famous example of South Africa has been celebrated—not uncontroversially—by human rights activists and international lawyers as a successful non- or pseudojudicial approach to memory building, truth, deliberation and social healing.¹¹ Nevertheless, not all truth commissions have had reconciliation and forgiveness among their direct purposes, and the findings of some have been used in subsequent criminal trials.¹²

The truth versus justice dilemma dominated the literature in the 1990s and 2000s, with some reverberations today; however, many scholars and practitioners agree that this was a false impasse. Both parties—supporters of truth commissions and supporters of criminal prosecutions—now generally think that the relationship between these two main transitional justice mechanisms is one of complementarity and not of mutual exclusiveness.¹³ If we adopt a more capacious understanding of postoppression justice, we can see that it serves multiple justificatory goals. Trials cannot accomplish reconciliation: this is not their end. Judicial proceedings do establish some measure of truth, but the courts’ perspective needs to be supplemented with insights from commissioners, historians, and the wider public, for, clearly, establishing victimhood status and taking victims seriously requires more than giving them an opportunity to testify in a tribunal. A truth commission or a gacaca court may constitute more appropriate venues for airing alternative visions of the past, claiming victimhood, and confronting one’s oppressors. In addition, commissions can assist courts by providing them with information. By exposing torturers and acknowledging the voice of the previously silenced victims, TRCs can also dispense a measure of justice.¹⁴ A division of labor between judicial and nonjudicial bodies is therefore likely to produce better and longer-lasting results.¹⁵

Thus understood, transitional justice becomes a complex project meant to encourage reflective public deliberation about what “we, the people” did, about who “we, the people” are—and want to become—in the future.¹⁶ While trials may hold the guilty accountable, truth commissions can promote reconciliation by denouncing all forms of political violence.¹⁷ While restitution and reparations can bring a measure of social justice to those suffering and the dispossessed, public memorials will capture the meaning of history for future generations. The reproduction of democracy requires that different institutions accomplish different tasks.¹⁸ Various mechanisms should be seen as contributing to a holistic effort to deal with the legacies of violence and oppression in a way that aims at establishing and deepening democracy normatively, institutionally, and culturally.¹⁹

While the truth versus justice dilemma has been overcome by a rather broad agreement on the complementarity of efforts to seek truth and do justice, the stability versus justice opposition seems to be more recalcitrant. Skeptics hold that transitional justice processes would endanger the prospects of democratization by pitting political adversaries against one another. The argument focuses almost exclusively on the practical obstacles that impede institutional efforts to correct past state-sponsored abuses. The following section will show why this dilemma has been so resilient. By revealing that the relationship of normative implication between democratization and transitional justice can also be prudentially valuable, we will then be in a position to convince realists to join the camp of transitional justice supporters.

STABILITY VERSUS JUSTICE: ANOTHER FALSE DILEMMA

Most arguments against postviolence justice warn elites of the potential for instability that usually accompanies such processes. Fragile democratic institutions are not in a position to hold their still powerful enemies accountable. Therefore justice is the price torn societies have to pay in exchange for peace. The success of democratization should take precedence over punishing the former elites; revenge-thirsty victims must be silenced if the polity is to move forward.²⁰ This is especially important in contexts where power was transferred conditionally, in exchange for amnesty.²¹

Realist voices claim that postoppression justice is, most of the time, simply a mask for a political vendetta, an opportunity for revanchism and scapegoatism, that makes the adherents of the previous regime resentful and unsupportive of the newly established democracy.²² While trials are the surest way to antagonize society, truth commissions suffer from many flaws as well: they open old wounds and allow impostors to make false accusations, while reconciliation has rarely, if ever, been achieved. There are other priorities the state should focus on: a constitutional regime, reform of the economy and of state institutions.²³ The existence of strong political constraints and limited resources—financial and institutional—constitute additional reasons why the ghosts of the past should not be awakened.²⁴

The realist’s argument is based exclusively on a logic of consequences that prioritizes the future and seeks immediate deterrence as the main goal. She opposes the “rights romanticism” of rectificatory justice fans, too sensitive to victims’ emotions.²⁵ “Rights romantics” put too much emphasis on laws and their educational impact on the world society.²⁶ The “norms cascade” phenomenon they hope for is simply an illusion given the feebleness of international law and tribunals,²⁷ to say nothing of the major power inequalities between the actors usually involved. The concern with moral sentiments is equally naive. One should not strive for a policy of dealing with the past that places emotional satisfaction at its core.²⁸ The logic of consequences dictates that transitional justice is permissible only to the extent that it serves the deterrence of direct perpetrators and leads to the entrenchment of the rule of law and of democratic institutions. If trials and truth commissions are not supported by the most powerful, they will end up destabilizing the already fragile postconflict equilibria. Should it be proven that amnesties better serve stability, they should be formally implemented and guaranteed. A truth commission could be established, but only instrumentally, for the purpose of distracting the public’s attention from the remaining injustice.²⁹

The realist does not overlook the possibility of entertaining transitional justice projects later on, when the political waters are calmer; however, by then such projects would serve no apparent good. Once stability and democracy reign, looking back into the past would bring no benefit for the future of the polity. When the bloodshed has stopped, there is no obvious need for deterrent measures.³⁰ Or so the realist thinks.

While I do not want to deny the prudential weight of these considerations under the demanding circumstances of postconflict contexts, this chapter will provide two lines of argumentation that seek to disclose the realist’s limited understanding of the circumstances of transitional justice and of democratic politics more generally.

First, I propose an argument that challenges the skeptic’s narrow account of democracy and democratization. As I argued in the introduction, the goal of the transition is the establishment of a viable constitutional democracy. Therefore the values constitutional democracy presupposes must inform both the objectives of transitional justice and the institutional measures through which these objectives are to be achieved, that is, both the means and the ends. Voice must be given to victims in order to include them in processes of decision making, processes from which they have been previously excluded. Yet such political empowerment must not come at the price of the victimizers’ rights. As a normative regime, constitutional democracy endorses an egalitarian theory of human worth that defines the limits of state power as well as the rights and duties that citizens hold.³¹ Naturally, the interpretations of the value of equal concern and respect for all human beings differ from one society to another, but it is this fundamental principle that constitutional democracies seek to instantiate from within their various political traditions. Were the books of history to be closed without even attempting a public discussion about the legacies of the past, the integrity of democracy as a normative regime would be violated.³² The commitment to equal respect and concern for all demands that steps be taken to address the violations of the past and recognize victims’ voices—however, without thereby victimizing the victimizers. As an institutional regime, constitutional democracy must strive to carefully balance attention to victims’ suffering and empowerment, on the one hand, and to the rights of perpetrators, on the other. Absent the rectificatory work of justice, the legitimacy of democratic institutions becomes dubitable. However, this normative proposal is relevant to the realist only to the extent that she sees a positive correlation...

Table of contents

• Cover 
• Title Page
• Copyright
• Dedication
• Contents 
• Acknowledgments
• Introduction: The Problem
• 1. Transitional Justice: Optional or Imperative?
• 2. Theorizing Resentment and Indignation
• 3. Enabling Emotional Responsibility I: Judicial Review of Transitional Justice Legislation
• 4. Enabling Emotional Responsibility II: Criminal Trials in Democratic Transitions
• Conclusions
• Notes
• Bibliography
• Index