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Justice, Transitional

Transitional justice is a relatively recent field of interdisciplinary inquiry. The term was coined in 1991 by Ruti Teitel, a legal scholar of Argentinian birth, in her scholarly and advisory work on the adjustment of societies to nondictatorial forms of political community after the collapse of military juntas throughout Latin America and after the end of Communism elsewhere in the world. As recognized by Neil Kritz in his annotated readings on the subject, the study of transitional justice elaborates a new conception of justice pertaining to both the post-World War II period and the current, post-Cold War period.

Teitel's 2000 book, Transitional Justice, explores contemporary transitional justice phenomena. Examples from Latin America, eastern Europe, the former Soviet Union, and Africa illustrate transitions following the overthrow of military dictatorships and totalitarian regimes. Key questions arise: How should societies deal with repressive pasts? What, if any, is the relationship between a state's response to its repressive past and its prospects for creating a “liberal” order? What is law's potential for ushering in liberalization?

Three Phases of Transitional Justice

The modern-day field of transitional justice goes back to post-World War II Europe, with the Nuremberg Trials and the founding of central multilateral international institutions. Later, during the Cold War, interest in transitional justice was largely put on hold, despite a handful of transitions.

Eventually, the collapse of the Soviet Union and related international changes spurred a second wave of transition—distinguished by aims of democratization and nation building and a versatile, local approach. This second phase sought to respond to, and delimit the scope of, a too powerful state. It went beyond the aims of postwar transitional justice—for example, through reconciliation and peacemaking aimed at resolving civil wars and ethnic conflicts. These added goals and means have not been easily reconciled with retributive justice.

Today, we are in the midst of a third phase—characterized by pervasive conflict that is generally internal to the state and by globalization. Transitional justice measures are normalized and entrenched in the international legal order. Competing aims and values span the international and the local, the public and the private, and the individual and the collective. These aims and values are difficult to reconcile and, thus, to advance.

Diverse Forms Associated with Transitional Justice

The second phase of transitional justice led to the creation of diverse forms and mechanisms—from trials, to truth commissions, to reparations, to memorials—as well as broader forms of institutional change, such as vetting and constitutionalizing.

In periods of political transition, retribution is often stressed. Yet, in the immediate successor regime, compromised conditions of justice often prevail. As a result, criminal sanctions are limited or avoided altogether, in favor of clemency measures. There is often a turn to diverse responses that go beyond punishment, such as administrative measures, vetting or “lustration,” civil actions, historical inquiries, and forms of systemic institutional reform such as constitutionalism. Manifestations of justice-seeking during such periods are varied: retributive, reparatory, bureaucratic, constitutional, and historical. Yet there are distinctive processes associated with political change, such that a paradigm of law that we may call “transitional jurisprudence” emerges. This paradigm aims to comprehend the often-paradoxical aims of both establishing (or maintaining) order and advancing political change. It also comprehends the conceptual and practical channels through which law's paradigm helps to effect liberalizing change.

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