Racial Justice as Transitional Justice

Polity

Volumn 36, Issue 1, 2003, Pages 53-71

  Valls, Andrew ^a  

^a OREGON STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 1842766301     PISSN: 00323497     EISSN: None     Source Type: Journal    
DOI: 10.1086/POLv36n1ms3235423     Document Type: Review

References (52)

1. Important works on transitional justice include Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes. 3 volumes. (Washington, D.C. : United States Institute of Peace Press, 1995); A. James McAdams, Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998); and Ruti Teitel, Transitional Justice (Oxford: Oxford University Press, 2000).
2. Important works on transitional justice include Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes. 3 volumes. (Washington, D.C. : United States Institute of Peace Press, 1995); A. James McAdams, Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998); and Ruti Teitel, Transitional Justice (Oxford: Oxford University Press, 2000).
3. Important works on transitional justice include Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes. 3 volumes. (Washington, D.C. : United States Institute of Peace Press, 1995); A. James McAdams, Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998); and Ruti Teitel, Transitional Justice (Oxford: Oxford University Press, 2000).
4. Important works on transitional justice include Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes. 3 volumes. (Washington, D.C. : United States Institute of Peace Press, 1995); A. James McAdams, Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998); and Ruti Teitel, Transitional Justice (Oxford: Oxford University Press, 2000).
5. On transitional prosecutions, see Kritz, Transitional Justice, volume 1, 335-438; Minow, Between Vengeance and Forgiveness, chapter 3; and Teitel, Transitional Justice, chapter 2.
6. On transitional prosecutions, see Kritz, Transitional Justice, volume 1, 335-438; Minow, Between Vengeance and Forgiveness, chapter 3; and Teitel, Transitional Justice, chapter 2.
7. On transitional prosecutions, see Kritz, Transitional Justice, volume 1, 335-438; Minow, Between Vengeance and Forgiveness, chapter 3; and Teitel, Transitional Justice, chapter 2.
8. On transitional compensation, see Kritz, Transitional Justice, volume 1, 489-591; Minow, Between Vengeance and Forgiveness, chapter 5; and Teitel, Transitional Justice, chapter 4. More general works on the rise of compensation and reparations for historical injustices include Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: W. W. Norton, 2000); and Roy L. Brooks, ed., When Sony Isn't Enough: The Controversy over Apologies and Reparations for Historical Injustice (New York: New York University Press, 1999).
9. On transitional compensation, see Kritz, Transitional Justice, volume 1, 489-591; Minow, Between Vengeance and Forgiveness, chapter 5; and Teitel, Transitional Justice, chapter 4. More general works on the rise of compensation and reparations for historical injustices include Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: W. W. Norton, 2000); and Roy L. Brooks, ed., When Sony Isn't Enough: The Controversy over Apologies and Reparations for Historical Injustice (New York: New York University Press, 1999).
10. On transitional compensation, see Kritz, Transitional Justice, volume 1, 489-591; Minow, Between Vengeance and Forgiveness, chapter 5; and Teitel, Transitional Justice, chapter 4. More general works on the rise of compensation and reparations for historical injustices include Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: W. W. Norton, 2000); and Roy L. Brooks, ed., When Sony Isn't Enough: The Controversy over Apologies and Reparations for Historical Injustice (New York: New York University Press, 1999).
11. On transitional compensation, see Kritz, Transitional Justice, volume 1, 489-591; Minow, Between Vengeance and Forgiveness, chapter 5; and Teitel, Transitional Justice, chapter 4. More general works on the rise of compensation and reparations for historical injustices include Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: W. W. Norton, 2000); and Roy L. Brooks, ed., When Sony Isn't Enough: The Controversy over Apologies and Reparations for Historical Injustice (New York: New York University Press, 1999).
12. On transitional compensation, see Kritz, Transitional Justice, volume 1, 489-591; Minow, Between Vengeance and Forgiveness, chapter 5; and Teitel, Transitional Justice, chapter 4. More general works on the rise of compensation and reparations for historical injustices include Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: W. W. Norton, 2000); and Roy L. Brooks, ed., When Sony Isn't Enough: The Controversy over Apologies and Reparations for Historical Injustice (New York: New York University Press, 1999).
13. On truth, acknowledgement and symbolic justice see Brooks, When Sorry Isn't Enough; Teilel, Transitional Justice, chapter 3; Minow, Between Vengeance and Forgiveness, chapter 4; Kritz, Transitional Justice, volume 1, 223-333; Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton: Princeton University Press, 2000); and Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2001).
14. On truth, acknowledgement and symbolic justice see Brooks, When Sorry Isn't Enough; Teilel, Transitional Justice, chapter 3; Minow, Between Vengeance and Forgiveness, chapter 4; Kritz, Transitional Justice, volume 1, 223-333; Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton: Princeton University Press, 2000); and Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2001).
15. On truth, acknowledgement and symbolic justice see Brooks, When Sorry Isn't Enough; Teilel, Transitional Justice, chapter 3; Minow, Between Vengeance and Forgiveness, chapter 4; Kritz, Transitional Justice, volume 1, 223-333; Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton: Princeton University Press, 2000); and Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2001).
16. On truth, acknowledgement and symbolic justice see Brooks, When Sorry Isn't Enough; Teilel, Transitional Justice, chapter 3; Minow, Between Vengeance and Forgiveness, chapter 4; Kritz, Transitional Justice, volume 1, 223-333; Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton: Princeton University Press, 2000); and Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2001).
17. On truth, acknowledgement and symbolic justice see Brooks, When Sorry Isn't Enough; Teilel, Transitional Justice, chapter 3; Minow, Between Vengeance and Forgiveness, chapter 4; Kritz, Transitional Justice, volume 1, 223-333; Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton: Princeton University Press, 2000); and Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2001).
18. On truth, acknowledgement and symbolic justice see Brooks, When Sorry Isn't Enough; Teilel, Transitional Justice, chapter 3; Minow, Between Vengeance and Forgiveness, chapter 4; Kritz, Transitional Justice, volume 1, 223-333; Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton: Princeton University Press, 2000); and Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (New York: Routledge, 2001).
19. There is the danger of a straw man here, as no one, as far as I know, defends the exclusively forward-looking approach to transitional justice as a general and principled matter. It is for this reason that I speak in terms of the conceivable positions. Still, as we will see, on specific issues and in specific contexts, some do argue for an approach to transitional justice that forgoes the backward-looking measures I defend.
20. On the right to see abusers prosecuted, see Juan E. Méndez, "In Defense of Transitional Justice," in McAdams, Transitional Justice, 1-26; and Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," Yale Law Journal 100 (June 1991); on the "right to truth" see Hayner, Unspeakable Truths, 30-31.
21. On the right to see abusers prosecuted, see Juan E. Méndez, "In Defense of Transitional Justice," in McAdams, Transitional Justice, 1-26; and Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," Yale Law Journal 100 (June 1991); on the "right to truth" see Hayner, Unspeakable Truths, 30-31.
22. On the right to see abusers prosecuted, see Juan E. Méndez, "In Defense of Transitional Justice," in McAdams, Transitional Justice, 1-26; and Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," Yale Law Journal 100 (June 1991); on the "right to truth" see Hayner, Unspeakable Truths, 30-31.
23. On rights as trumps, see Ronald Dworkin, "Liberalism," in Public and Private Morality, ed. Stuart Hampshire (Cambridge: Cambridge University Press, 1977), 113-43, esp. 136.
24. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 49.
25. See Joel Feinberg, "The Expressive Function of Punishment," in Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970), 95-118.
26. Feinberg, "Expressive Function," 101-02.
27. This distinction between knowledge and acknowledgement is credited to a comment by Thomas Nagel. See Lawrence Weschler, A Miracle, A Universe: Settling Accounts with Torturers (New York: Penguin Books, 1990), 4.
28. See Minow, Between Vengeance and Forgiveness, 31-37.
29. See, for example, the essays in Rotberg and Thompson, eds., Truth v. Justice.
30. Jeremy Waldron, "Superseding Historic Injustice," Ethics 103 (1992): 4-28.
31. Jon Elster, "On Doing What One Can: An Argument Against Post-Communist Restitution and Retribution," in Kritz, Transitional Justice, volume 1, 566-68.
32. See, for example, Larry May, Crime and Humanity: A Normative Account of International Criminal Law (Cambridge: Cambridge University Press, forthcoming), chapter 13.
33. See Robert Meister, "Forgiving and Forgetting: Lincoln and the Politics of National Recovery," in Human Rights in Political Transitions, ed. Carle Hesse and Robert Post (New York: Zone Books, 1999); and Teitel, Transitional Justice, 152-57.
34. See Robert Meister, "Forgiving and Forgetting: Lincoln and the Politics of National Recovery," in Human Rights in Political Transitions, ed. Carle Hesse and Robert Post (New York: Zone Books, 1999); and Teitel, Transitional Justice, 152-57.
35. Hence Bruce Ackerman calls the civil rights era a period of "great constitutional transformation." See Ackerman, We the People 1: Foundations (Cambridge: Harvard University Press, 1991), 110.
36. President Lyndon B. Johnson, "The Howard University Address," in Lee Rainwater and William L. Yancy, The Moynihan Report and the Politics of Controversy (Cambridge: MIT Press, 1967), 125-32: 126.
37. See my "The Broken Promise of Racial Integration," in NOMOS XLIII: Moral and Political Education, ed. Stephen Macedo and Yael Tamir (New York: New York University Press, 2002), 456-74.
38. See Melvin L. Oliver and Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality (New York: Routledge, 1997); and Jennifer Hochschild, Facing Up To the American Dream: Race, Class, and the Soul of the Nation (Princeton: Princeton University Press, 1995), especially 39-42.
39. See Melvin L. Oliver and Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality (New York: Routledge, 1997); and Jennifer Hochschild, Facing Up To the American Dream: Race, Class, and the Soul of the Nation (Princeton: Princeton University Press, 1995), especially 39-42.
40. For one account of why threats and blackmail should not figure in a view of justice, see Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 84-86. For another see David Gauthier, Morals By Agreement (Oxford: Oxford University Press, 1986), 155-56, 185-87, 199-200. Someone - I thought it was one of these authors, but cannot find the quote - has written, "To each according to her threat advantage is not a principle of justice."
41. For one account of why threats and blackmail should not figure in a view of justice, see Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 84-86. For another see David Gauthier, Morals By Agreement (Oxford: Oxford University Press, 1986), 155-56, 185-87, 199-200. Someone - I thought it was one of these authors, but cannot find the quote - has written, "To each according to her threat advantage is not a principle of justice."
42. On transitional prosecutions in the U.S., see Teitel, Transitional Justice, 66.
43. See Valls, "Libertarian Case for Affirmative Action," Social Theory and Practice 25 (1999): 299-323.
44. See Brooks, When Sorry Isn't Enough, 367-69.
45. I explore this further in "A Truth Commission for the United States?" Intertexts, forthcoming.
46. I explore this further in "The Case for an Apology to African Americans," forthcoming.
47. See James Forman, Jr., "Driving Dixie Down: Removing the Confederate Flag from State Capitols," Yale Law Journal 101 (1991): 505-26; and Sanford Levinson, "They Whisper: Reflections on Flags, Monuments, and State Holidays, and the Construction of Social Meaning in a Multicultural Society," Chicago-Kent Law Review 70 (1995): 1079-1119. For a contrary view, see George Schedler, Racist Symbols and Reparations: Philosophical Reflections on Vestiges of the American Civil War (Landham: Rowman and Littlefield, 1998).
48. See James Forman, Jr., "Driving Dixie Down: Removing the Confederate Flag from State Capitols," Yale Law Journal 101 (1991): 505-26; and Sanford Levinson, "They Whisper: Reflections on Flags, Monuments, and State Holidays, and the Construction of Social Meaning in a Multicultural Society," Chicago-Kent Law Review 70 (1995): 1079-1119. For a contrary view, see George Schedler, Racist Symbols and Reparations: Philosophical Reflections on Vestiges of the American Civil War (Landham: Rowman and Littlefield, 1998).
49. See James Forman, Jr., "Driving Dixie Down: Removing the Confederate Flag from State Capitols," Yale Law Journal 101 (1991): 505-26; and Sanford Levinson, "They Whisper: Reflections on Flags, Monuments, and State Holidays, and the Construction of Social Meaning in a Multicultural Society," Chicago-Kent Law Review 70 (1995): 1079-1119. For a contrary view, see George Schedler, Racist Symbols and Reparations: Philosophical Reflections on Vestiges of the American Civil War (Landham: Rowman and Littlefield, 1998).
50. Teitel, Transitional Justice, 107.
51. But see Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberlè Williams Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder: Westview Press, 1993).
52. Brooks, When Sorry Isn't Enough, 8.