Negative Emotions and Transitional Justice 9780231541183, 9780231176507

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N E G AT I V E E M O T I O N S and TRANSITIONAL JUSTICE

MI HAEL A

MIHA I

Negative Emotions and Transitional Justice

Negative Emotions and Transitional Justice

Mihaela Mihai

Columbia University Press New York

Columbia University Press Publishers Since 1893 New York Chichester, West Sussex cup.columbia.edu Copyright © 2016 Columbia University Press All rights reserved Library of Congress Cataloging-in-Publication Data Mihai, Mihaela, author. Negative emotions and transitional justice / Mihaela Mihai. pages cm. Includes bibliographical references and index. ISBN 978-0-231-17650-7 (cloth : alk. paper) — ISBN 978-0-231-54118-3 (e-book) 1. Transitional justice. 2. Political crimes and offenses. I. Title. K5250.M54 2016 340'.115—dc23

2015018087

Columbia University Press books are printed on permanent and durable acid-free paper. This book is printed on paper with recycled content. Printed in the United States of America c 10 9 8 7 6 5 4 3 2 1 cover design: Archie Ferguson References to websites (URLs) were accurate at the time of writing. Neither the author nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

To my family and friends

C o n t e n ts

Acknowledgments

ix

Introduction: The Problem

1

1. Transitional Justice: Optional or Imperative?

25

Overcoming the Truth Versus Justice Dilemma

27

Stability Versus Justice: Another False Dilemma

29

Democratic Shifts and the Emotional Circumstances of Justice 36 The Exemplarity of Institutional Normative Consistency

2. Theorizing Resentment and Indignation

41

45

Liberal Democratic Accounts of the Sense of Justice and Their Limits 49 A Weak Constructionist View of Emotional Socialization

62

Constituting and Regulating Resentment and Indignation

67

The Sources of the Sense of Justice

73

viii

Contents

3. Enabling Emotional Responsibility I: Judicial Review of Transitional Justice Legislation 79 Judicial Review and the Shaping of a Democratic Emotional Culture 83 The Limits of “Law as Integrity”

86

Judicial Review and the Exemplarity of Oriented Reflective Judgment 93 Reflective Judgment in Context I: Judicial Review of Transitional Justice Bills 101

4. Enabling Emotional Responsibility II: Criminal Trials in Democratic Transitions 123 Legal Didactics: Doing Justice to the Representation of Atrocity 127 The Instrumentality of Legalism

130

Criminal Trials and Legal Pedagogy: Toward Democratic Solidarity 136 Reflective Judgment in Context II: Transitional Justice and Criminal Trials 141

Conclusions

Notes

171

Bibliography Index

159

221

197

A c k n ow l e d g m ent s

Many debts have been incurred during the process of preparing this book for publication. At the University of Toronto, Simone Chambers, David Dyzenhaus, Joseph Heath, Melissa Williams, Rebecca Kingston, and Ryan Balot generously read and commented on the first version of this project. The members of the Political Theory Group in Toronto offered precious suggestions on various chapters. I thank Margaret Haderer, Rinku Lamba, Alex Livingston, Inder Marwah, James McKee, Leah Soroko, Jakeet Singh, and Serdar Tekin for their careful reading and unwavering friendship. My former colleagues at the Centre for Social Studies, University of Coimbra and at the Centre for Research in Ethics, the University of Montreal offered helpful feedback and intellectual companionship. In particular, I would like to mention Cecília MacDowell Santos, Daniel Weinstock, Silvia Rodríguez Maeso, António Sousa Ribeiro, Ana Cordeiro Santos, Jõao Rodrigues, Júlia Garraio, Laura Centemeri, and Michele Grigolo. Jõao Rosas and the fantastic group of political theorists at the Centre for Humanistic Studies in Minho provided an excellent forum for testing ideas. At the University of York I had the opportunity to work with a brilliant group of scholars who helped me navigate the difficult process of seeing the book in print. Mónica Brito-Vieira, Werner

x

Acknowledgments

Bonefeld, Matthew Festenstein, Matt Matravers, Martin O’Neill, Angie Pepper, Tom O’Shea, and Tim Stanton are the members of an enviable community of political theorists, and I thank them for their generosity. Alice MacLachlan carefully read the entire manuscript, and her questions gave me many reasons to reflect; I thank her warmly for that. The anonymous reviewers of this manuscript provided useful ideas for revision. Alicia Partnoy and Tamas Dezso kindly let me use their excellent work for my epigraph and cover. Wendy Lochner and Christine Dunbar at Columbia are exemplars of tactful professionalism. Susan Pensak did a wonderful job at copyediting my text. Last but not least, I am grateful to the Mihais and the Thalers for their blind trust and affection. Particular thanks are owed to Mathias for his illuminating suggestions on the text, his endless patience and steadfast support. The book benefited from the support of the Europeace Research Council (637709). The usual disclaimers apply. Earlier versions of some parts of the introduction, chapter 1, and chapter 2 were published in “Transitional Justice and the Quest for Democracy: A Contribution to a Political Theory of Democratic Transformations,” Ratio Juris 23, no. 2 (2010): 183–204. Parts of the theoretical discussion in chapter 4 appeared in “Socializing Negative Emotions: Transitional Criminal Trials in the Service of Democracy,” Oxford Journal of Legal Studies 31 (Spring 2011): 111–31. The discussion of the Argentine escrache in chapter 3 is expanded in “Denouncing Historical ‘Misfortunes’: From Passive Injustice to Reflective Spectatorship,” Political Theory 42 (2014): 443–67. Parts of the analysis of Alessandro Ferrara’s work were published in “When the State Says ‘Sorry’: State Apologies as Exemplary Political Judgments,” Journal of Political Philosophy 21, no 2 (2013): 200–20. A preliminary version of the Argentine case study has been published in “Public Negative Emotions and the Judicial Review of Transitional Justice Bills: Lessons from Three Contexts,” Papeles del Centro de Estudios sobre la Identidad Colectiva 60 (2010): 1–29. The first sketch of the Romanian case was published in Portuguese in “Julgamentos penais em períodos de transição e o desafio das emoções: histórias de dois países,” Revista Crítica de Ciências Sociais 88 (2010): 155–84 (http://rccs.revues.org/1728).

Negative Emotions and Transitional Justice

I n tr o d u c t i o n The Problem Where there was torture, there are walking, wounded victims. Where there were killings, wholesale massacres, there are often witnesses to the carnage, and family members too terrified to fully grieve. Where there were persons disappeared, kidnapped by government forces without a trace, there are loved ones desperate for information. Where there were years of unspoken pain and enforced silence, there are often a pervasive, debilitating fear and, when the repression ends, a need to slowly learn to trust the government, the police and the armed forces, and to gain confidence in the freedom to speak and mourn properly. —Priscilla Hayner, Unspeakable Truths

Dwelling in the frozen space of inability and incapacity is unacceptable, unresponsive to the victims, unavailing to the waiting future. —Martha Minow, Between Vengeance and Forgiveness

To forget would not only be dangerous but offensive; to forget the dead would be akin to killing them a second time. —Elie Wiesel, Night

A “Day of Rage” marked the beginning of the end for Hosni Mubarak’s twenty-nine years of dictatorial rule over Egypt. “We are so furious. We must have change, better chances to work, to buy a flat and have just the life’s basics,” one citizen told the BBC reporter following the mass protests and the violent clashes in January 2011.1 The economic and

2

Introduction

political frustration with the regime mobilized the Egyptian population across the country in a struggle that culminated in the dictator’s resignation on February 11, 2011. Yet victory came at a cost: hundreds of protesters were killed and thousands injured by the forces of the regime.2 Victims’ grieving families returned to Tahrir Square day after day in an effort to exert pressure on the authorities to bring the perpetrators to justice. In May 2011, three days after a large demonstration called for the trial and conviction of Hosni Mubarak, it was announced that the dictator, together with his sons and a few senior aides, would stand trial in an ordinary court of law for the killing of protesters. Two other charges of corruption were added to the list. On August 3, 2011, the trial began in a climate of emotional effervescence, both inside and outside the courtroom. Outraged protesters clashed with loyal supporters of the former regime. Inside, confusion and chaos loomed over the proceedings headed by Judge Ahmed Refaat. The victims’ representatives, human rights organizations, journalists, and the public at large questioned chief judge’s impartiality. His decision to abruptly close the trial on January 2, 2012, was particularly criticized, especially because lawyers still had pending requests to hear additional witnesses and access new evidence. In addition, the trial was marked by a large number of omissions. The defendants were charged with complicity in premeditated murder, but no mention was made of the direct perpetrators of these murders. The abuses committed during Mubarak’s twenty-nine years as Egypt’s ruler were not covered by the trial. The prosecutor had been appointed by the dictator himself and continued to do his job after the regime change. Throughout the trial he presented summaries of documents, not the originals. Some of the testimonies by key officials under Mubarak’s direct command were heard in secret and were never made officially public by the court. Moreover, most of the evidence at the Ministry of Interior had been mysteriously destroyed. After the first sessions, the video cameras were removed from the courtroom, supposedly to ensure public order. Observers also noted that the trial was unfolding at too rapid a pace given its complexity. Last but not least, delegates of human rights organizations who wanted to monitor the proceedings had problems getting access to the court.3 All this made the trial look rather suspicious to the Egyptian population and the international community.

Introduction

3

The entire duration of the trial was punctuated by angry street protests, yet the greatest unrest came after the verdict and sentence were delivered. Mubarak and his interior minister, Habib al-Adl, were sentenced to life imprisonment for failing to prevent the killing of protesters during the Egyptian Revolution. The dictator and his sons were cleared of the corruption charges, and so were the other six officials tried at the same time.4 Anger erupted in the courtroom where lawyers representing the victim’s families asked for the cleansing of the judiciary, declaring that “God’s verdict is execution.”5 As the details of the ruling made their way into the streets, disappointed protesters clashed with the supporters of the dictator. Approximately ten thousand people gathered again in Tahrir Square, chanting: “A farce, a farce, this trial is a farce” and “The people want the execution of the murderer.”6 While human rights organizations declared that the trial had been largely correct, only the head of the abusive system had been removed, in a maneuver that looked too much like scapegoatism. The fact that the system had remained almost intact and that the major figures had been acquitted fueled the public’s fury against the repressive apparatus. The possibility of reversal on appeal did not help dissipate the generalized indignation and distrust in the judiciary’s capacity to bring justice to a traumatized society. The survivors’ and their families’ worst fears became reality when, in November 2014, Mubarak was acquitted of the killings of protesters in 2011. Two thousand people gathered in Tahrir Square, angry at the decision. Ramadan Ahmed, whose son was killed in Alexandria at the beginning of the Arab Spring, declared, “There is no justice for the poor. This is Mubarak’s law.”7 The small protest was quelled with tear gas—a discouraging end to the short democratic spring in Egypt. The Egyptian case illustrates an important dilemma that societies coming out of political oppression have to face. On the one hand, victims’ resentment toward against their persecutors constitute legitimate reactions to the experience of injustice and require institutional recognition. Moreover, they mobilize citizens to fight against impunity, often in ways that are not conducive to the entrenchment of democratic norms. Institutionally imposed silence is seldom, if ever, a lasting solution. Therefore, it is crucial to give due recognition to these legitimate emotions, but always in a way that does not violate the rights of the accused, i.e., in a way that does not smack of legally

4

Introduction

sanctioned revenge. On the other hand, this task is incredibly difficult under the volatile circumstances of a democratic transition. First, perpetrators are often protected by institutions and laws they have themselves put into place. Second, where the balance of power is fragile and narratives about the past divisive, the danger of renewed violence weighs heavily on political decision making. Perpetrators themselves are resentful for having lost the grip on state power and threaten to destabilize institutions. For this reason, concerns about stability and peace are often given priority at the expense of substantive, meaningful justice claims.8 This book focuses on the problem of institutionally recognising and engaging public emotional responses to oppression and violence within the framework of transitional justice processes. Against their representation as irrational, destabilizing passions, I argue that resentment and indignation towards perpetrators of violations are legitimate reactions to the experience of injustice. Should institutions ignore or aim to suppress public anger, victimization and the insult it implies would be reproduced in time. What is more, the usefulness of these feelings as signals of alarm about legitimacy deficits would be wasted. Left unvindicated, negative emotions can either threaten stability or degenerate into political apathy and cynicism. By drawing attention to one of the less theorized dimensions of democratic transitions, that of citizens’ politically relevant emotions, I hope to inspire novel ways of thinking about institutional engagements with a painful past of violence and oppression. The kind of normative burdens, but also the political opportunities, that emotional mobilization creates for institutions will be examined with an eye to offering a theoretical contribution to an already rich literature on transitional justice. While the focus of the book lies with survivors’ and their families’ emotional reactions, I will also touch upon public expressions of emotion by victimizers, their political supporters, and the wider public. More often than not, ousted leaders are resentful at having lost political power, while their supporters are indignant at political changes they perceive as unjust. The broader public of bystanders often fail to become indignant at grave violations of human rights, thus contributing to a situation of normalized impunity. This book touches upon these phenomena in a way that highlights their impact on the democratic quality of a society’s public culture. Theoretically,

Introduction

5

it attempts to provide guidelines for distinguishing between democratically appropriate and democratically inappropriate expressions of emotion by various parties in the wake of dramatic political transformations. Empirically, it illustrates the conflictual interplay of opposing emotional responses in the wake of violence and the role that institutions can play in productively orienting emotional energies in support of democracy. “Transitional justice” covers an extensive area of research, quite heterogeneous in its focus and methodology. The label refers to institutional processes of dealing with a past of state-sponsored oppression and violence and is rather unsatisfactory,9 for it implies a clear temporal delimitation of the transition from authoritarianism or civil war to democracy. Such thresholds are difficult—if not impossible—to identify.10 Political scientists’ efforts to determine the moment when democracy has become “the only game in town” inherently rely on arbitrary measurements, misrepresenting the complexity of democratization processes.11 In addition, while democracy is sought as the end result of such transformations, its prospects are more remote in some contexts than in others. In war-torn societies, the immediate concern of domestic elites and their international aides is a stable peace. The transition to a democratic regime is an important concern, but not as urgent as stopping the bloodshed. Those who study transitional contexts often consider “postconflict justice” to be a more appropriate label for the processes of accountability and reconciliation chosen in the aftermath of traumatic violence.12 Due to the high currency of the term in the literature, this book will continue to use transitional justice in order to reach its audience. However, in parallel, I introduce terms like postviolence justice to refer to the mechanisms societies use in order to come to terms with a violent past during the transition to some form of democracy. The most frequently used mechanisms for dealing with the past are criminal prosecutions, lustration, truth (and reconciliation) commissions, reparations, memorials, and exhumations.13 Some rather recent international and domestic developments have brought these mechanisms, their failures and their successes, into the academic spotlight.14 Wider media scrutiny of state-sponsored atrocities all over the world, the increased number of nongovernmental organizations monitoring human right abuses, last century’s developments in international

6

Introduction

human rights law,15 the establishment of international and hybrid criminal courts,16 as well as changes in the nature of waging war have focused scholars’ attention on the choices polities need to make in the aftermath of major suffering and oppression. In the last few decades, the literature on transitional justice has developed as an independent and specialized field of research. Political scientists, historians, sociologists, psychologists, activists, philosophers, and especially lawyers have been working toward a better understanding of the main problems that societies coming out of authoritarianism or civil conflict have to face.17 Transitional justice concerns are not entirely new. While some authors claim they go all the way back to ancient Athens,18 most analysts start by looking at the accountability mechanisms used in the aftermath of the First and Second World Wars.19 Irrespective of where one stands with regard to the historical development of transitional justice practices, a number of resilient normative and practical questions have troubled new political elites, lawyers, human rights activists, academics, and the public at large: “What should be done with a recent history full of victims, perpetrators, secretly buried bodies, pervasive fear, and official denial? Should this past be exhumed, preserved, acknowledged, apologized for? How can a nation of enemies be reunited, former opponents reconciled, in the context of such a violent history and often bitter, festering wounds? What should be done with hundreds or thousands of perpetrators still walking free? And how can a new government prevent such atrocities from being perpetrated in the future?”20 Theoretically, the multitude of aspects that decision makers have to take into account can be subsumed under two programmatic questions. The first question postauthoritarian or postconflict societies have to answer is: Should there be any transitional justice at all, or should we rather forget about the past and move forward? This is a question that requires us to provide reasons why the past should, or should not, be ignored. If the answer is positive, then the issue of distributing justice—the second query—arises: How should we distribute transitional justice? More precisely, we must provide an account of the various institutional forms the engagement with the past can take: trials, truth commissions, reparations, restitution, memorials, exhumations, apologies, etc. In addition, the ways in which particular mechanisms should dispense justice—with respect to victims, victimizers, beneficiaries of violence, and bystanders—need

Introduction

7

to be explored. Who gets compensation and how much; who gets to testify, when, where, and how; who gets prosecuted, when, where, and how; who gets punished, for how long, and in what way; whose bones are exhumed; who apologizes and to whom—these are all questions related to the distribution of transitional justice. This book attempts to address both issues—justification and distribution—in a way that pays attention to the emotional circumstances of justice in transition.21 By bringing together insights from a wide variety of literatures and disciplines, I seek to propose a fresh perspective on both the normative weight and the prudential desirability of justice measures in the wake of atrocity. The first part of the book deals with the problem of justification and puts forth a defense of the necessity to initiate transitional justice processes. My position is constructed in response to the skeptics who place special emphasis on the divisiveness and destabilizing forces resulting from the engagement with the past. Postoppression contexts are marked by strong public outrage and outbursts of resentment and indignation. Therefore justice processes will only provide a venue for an encounter of hatreds, thus endangering the stability and consolidation of democracy, the skeptics claim. Democratization cannot progress if we do not bury the past: societies must focus their energies on the construction of institutions and laws, not on the chimera of addressing past evils. Against this position, this book formulates two arguments. The first argument is normative. The emotional reactions that skeptics fear will be conceptualized as markers of an evaluative capacity to recognize injustice. Resentment is a reaction triggered by injustice committed against oneself, while indignation results from witnessing injustice against another. Because of their association with displeasure and discomfort, these reactions are usually called “negative” emotions. As evaluative emotions, i.e., as emotions that presuppose a moral judgment, they bear normative weight and qualify as legitimate objects of concern for any democratic order. Given that it is constitutional democracies, or societies aspiring to embrace constitutional democracy, that have historically promoted or engaged in transitional justice, the end goal— constitutional democracy—sets the parameters of the process, that is, of the transition. Therefore, should a polity make the transition to democracy without opening a discussion about the legacies of the past and

8

Introduction

without taking the victims’ emotional responses seriously, its normative integrity would be endangered. In other words, one cannot proclaim equal concern for all citizens and at the same time silence some for the sake of stability. Transitional justice can, at most, be postponed for prudential considerations, but cannot be dismissed without violating core democratic values. The second argument in favor of dealing with past conflict highlights the potential positive implications of the normative argument. I argue that it is important to take into consideration not only the dangers but also the opportunities that negative emotions create for democracy. Taking the past seriously and engaging publicly with citizens’ politically relevant emotional responses represents a first opportunity for institutions to embark on a process of democratic emotional socialization. Not all emotions are politically relevant, and I do not propose to offer here a list of emotions that would qualify as such. It seems uncontroversial to argue that resentment and indignation in response to perceived injustices bear political significance in an aspiring democracy. This book argues that such negative emotions are part of the political culture of any society and that they make the object of norms of emotional appropriateness. The targets of these emotions, the intensity thereof, as well as the actions they motivate constitute essential objects of concern for any democratic regime. I argue that, though there are no guarantees of success, transitional justice projects offer an important opportunity to stimulate reflection on what democratically appropriate resentment and indignation would look like. This book argues that the institutions involved in transitional justice should strive for clear, exemplary decisions that provide victims and victimizers, as well as the wider publics, with a justification and an explanation of what a commitment to constitutional democracy requires of both institutions and citizens in the wake of political violence. Such decisions should simultaneously give voice to all parties, acknowledge legitimate forms of resentment and indignation, and point to the ways that they can be expressed in a democratic society. That is to say, institutional processes must be set up for the purpose of rectifying injustice without undermining either the stability or the normative integrity of the young democratic regime. Whether or not their example will be taken up depends on a variety of factors that will be explored in the analysis of the case studies. Yet the contingency of success should not

Introduction

9

make institutional agents weary of trying to recuperate and tap the democratic potential of negative emotion. These two arguments presuppose that institutions can differentiate between legitimate and illegitimate manifestations of public outrage. There are legitimate and illegitimate targets of negative emotions, just as there are legitimate and illegitimate forms of manifesting it publicly. Our outraged sense of justice can be misguided—oversensitive, lacking proof or solid arguments, or pushing us to perpetuate cycles of violence. Perpetrators themselves can be resentful for having been deposed from the seat of power. Indignant observers might turn out to be dangerous fanatics. Given that constitutional democracy is the goal of the transition, legitimate negative emotions must be based on a correct assessment of the injustices suffered. Self-righteous, unduly moralizing, and disproportional responses—responses that deny the perpetrators their own equal moral personhood—are not democratically appropriate. Emotions that incite to further violence or that seek to scapegoat are additional examples of the kind of emotion that is incompatible with democratic principles. While negative emotions can be powerful forces of social change, they can also serve undemocratic purposes. However, if motivated by a concern with what is owed to everyone as an equal member of the political community and expressed in ways that do not push societies further down a spiral of abuse, they can stimulate important debates and catalyze institutional redress. The only way to validate and filter legitimate emotion is to allow everyone to voice their concerns and bring evidence within safe institutional fora under the protection of the principle of equal concern and respect for all. In such fora individuals and groups can learn—or remember—how to take responsibility for their resentment and indignation and embrace democratic norms of social interaction. As I will show later on, courts should provide the kind of space that is propitious for publicly distinguishing legitimate from illegitimate emotional responses. The second part of the book will deal with the second programmatic question, namely that of distributing postconflict justice. I will not argue for the superiority of one mechanism of transitional justice over others. At no point does this project envisage that there is a unique, best way of dealing with the past. Given the historical variability of circumstances, the complexity and “messiness” of politics, the often

10

Introduction

contested nature and scope of victimhood, the shortage of resources and different timing of the transitions, it would be absurd, unproductive, and even dangerous to insist on a “tick-box” approach to transitional justice. And while this prescriptive temptation is still strong in the literature, since the end of the 1990s more and more scholars have argued that a division of labor between different institutional mechanisms is more likely to produce long-lasting results.22 For example, while trials can bring about a measure of justice, on their own they cannot cater to the needs of a traumatized population. Truth commissions and exhumations can help unveil the facts and give voice to those who had been forcefully silenced. Compensation and reparation can contribute to remedying the social injustices frequently underlying the violence. More often than not, domestic actors need the support of regional and international human rights organizations, whose agencies can, under certain circumstances, help in the struggle against impunity. The cooperation of legal and nonlegal, subnational, national and international, accountability and truth-telling institutions is necessary to carry our complex programs of “transitional justice.” The institutional shape transitional justice will take in a certain society at a certain point in time will depend on a variety of constraints and on the contextual political judgment of the major players involved in the transition. This book focuses on the ways in which domestic courts involved in distributing postconflict justice should recognize democratically appropriate resentment and indignation. I argue that the judicial review of transitional justice bills, as well as criminal trials of victimizers, should regulate the distribution of justice in ways that simultaneously acknowledge the emotional burdens of past violence and reaffirm the polity’s commitment to constitutional democracy. Through exemplary reflective judgments—judgments that simultaneously recognize the verdict of citizens’ legitimate negative emotions and filter their expression through democratic values (as contextually translated)—courts can and should aim to encourage democratic dispositions. The public expression of negative emotion by victimizers and their supporters should also be pedagogically engaged. Transitional justice processes present us with important opportunities for embarking on a long process of cultivating and nurturing a democracy-friendly public culture. This involves clearly condemning the politically distort-

Introduction

11

ed visions of the past cherished by former leaders who vehemently denounce transitional justice as mere victors’ revenge. Last but not least, the wider public constitutes the third audience for institutional attempts to address an unsavory past. Democrats are not born overnight, and it takes concerted and sustained institutional effort to socialize the kind of citizens democracy needs for its functioning. A series of empirical case studies from Latin America, Eastern Europe, and South Africa illustrate how courts have chosen to deal with public expressions of resentment and indignation. As will be shown later on, magistrates used a plethora of arguments and strategies, depending on their circumstances: judgments were bound by the particularity of the political constellations within which they were issued. Several factors framed the decisions and help explain the variation in the kind of strategies courts adopted in reviewing bills and deciding criminal cases: the way in which judges conceived of their role as institutional and historical actors, the level of legal and emotional mobilization, the legal tradition of the country, the type of agents who initiate the transitional justice bills or who push for criminal trials, and, last but not least, the timing of the cases in relation to the different stages of the historical development of transitional justice as an international concern. The cases have been selected with a view to covering a variety of political contexts (South Africa, Latin America, and Eastern Europe) and different moments in the development of transitional justice as a practice (1989, 1996, 2005, 2009). While the trial of Nicolae Ceaușescu and the review of the South African Law of the Truth and Reconciliation Commission took place in the second stage of transitional justice, the trial of Alberto Fujimori and the review of the amnesty laws in Argentina came later, when transitional justice as a practice had already been internationalized. In their own way, each of these cases shows the importance of public emotions as part of the circumstances of justice in transition. The challenge to the constitutionality of the South African Truth and Reconciliation Commission was motivated by the negative emotions of the families of victims. The Constitutional Court exemplarily addressed their emotional experiences and delivered an inspiring decision explaining why the commission was the most appropriate form of transitional justice in view of avoiding further violence and potential miscarriages of justice

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Introduction

in South Africa. In Argentina, emotional mobilization by survivors and their families fueled the quest for legal justice domestically and beyond the borders of the nation-state. Public rituals of resentment and indignation drew signals of alarm about Argentina’s condoning of impunity and became substitutes for transitional justice in a climate of generalized apathy toward impunity. When the courts finally took up the invitation launched by victims’ families, they used a wealth of legal and historical resources to recognize the survivors’ legitimate resentment and denounce the general public’s failure to become indignant at egregious violations of their fellow citizens’ human rights. In Peru, as in Argentina, the end of impunity would not have been possible in the absence of transnational emotional mobilization by survivors and victims’ families. Their struggle was anchored in resentment and indignation at the shameful amnesties that protected the perpetrators of grave violations. When the trial of Alberto Fujimori finally took place, judges made sure that both victims and victimizers had their day in court. Democratically appropriate emotions by victims were recognized, while Fujimoristas’ problematic indignation was engaged didactically. Last but not least, Romania illustrates what can happen when, in a climate of heightened fear and anger, judges vent negative emotion unreflectively, simultaneously sacrificing legality and democratic pedagogy. Before outlining the structure of the chapters to come in more detail, several important issues need to be addressed. First, a few words on the conception of democracy at play in this book.23 In discussing democracy as both a goal and limit on processes of transitional justice, this project does not subscribe to a vision of democracy that equates it with the expression of unchecked popular will. On the contrary, I work with a general normative account of democracy, according to which popular will is constrained by a set of principles that protect individuals’ rights. Such a starting point is unproblematic. Different political theorists conceive of the nature of these principles and of their relationship to popular will differently: some see constraints external to democracy, others see them as internal to it, but most scholars of democracy today theorize majoritarianism as somehow restricted by norms that prevent its tyranny. Probably the most famous affirmation of the priority of liberty as an external standard is offered by John Rawls, who argues that his two principles

Introduction

13

of justice should govern the basic structure of a well-ordered society.24 Ronald Dworkin, on the other hand, conceives of individual rights as not in tension but internal to democracy: according to him, the principle of equal respect and concern for all sets the perimeter of popular decision making.25 Similarly, Corey Brettschneider enumerates political autonomy, the equality of interests, and reciprocity as the core values inherent in the concept of democracy.26 Deliberative democrats have provided different perspectives on this theoretical conundrum. For example, Joshua Cohen attempts to reconcile democracy as procedure with democracy as substance.27 Seyla Benhabib uses the notion of “democratic iterations” to show how universal individual rights grounded in communicative freedom can be embedded in local political institutions and practices.28 Habermas’s co-originality thesis dissolves the tension altogether, arguing that constitutionalism and democracy are materially implicated.29 Republicans too place a break on democratic decision making—freedom as nondomination— though they disagree about how best to translate it institutionally.30 Last but not least, agonists think the aim of democracy is to transform antagonism into agonism through adherence to ethicopolitical values of equality and liberty for all.31 No matter how they conceive the nature of constraints on democracy and the relationship between democracy and individual basic rights, all the different perspectives I have enumerated disavow unbridled majoritarianism and propose some form of institutional check on popular sovereignty. They each understand democratic decision making as inclusive of all members of the political community, its outcomes oriented by a concern for the equal freedom of all. Because of this general trait, these conceptions have the theoretical resources to recognize and accommodate the main arguments this book is making, namely, that the reproduction of constitutional democracy as a normative, institutional, and cultural regime requires the recognition and socialization of politically relevant negative emotions. Outlining in detail the particular implications of these claims for each of the theories mentioned lies beyond the scope of this project. For the purpose of answering the two programmatic questions formulated here it is sufficient to clarify that I start off from a conception of constitutional democracy in which both institutions and citizens should guide themselves by reference to the principle of equal respect and concern for all.

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Introduction

Moreover, as political theorists engaging with pressing political issues, we need to pay attention to the institutional preferences of societies making the transition to democracy. As many scholars have pointed out, transitional justice has historically been the project of constitutional democracies—or of societies aspiring to become constitutional democracies. It is constitutional democracies that are concerned with addressing past violations of human rights and with guaranteeing procedural protections for the rights of the perpetrators whom they hold accountable. It is constitutional democracies that see transitional justice as necessary for acknowledging the voices of the previously excluded victims with a view to enfranchising and empowering them as equal citizens. In nuce, it is constitutional democracies that strive to strengthen the rule of law to ensure the inclusiveness and transparency of democratic mechanisms of decision making. Nondemocratic societies do not engage in transitional justice, though they do have their own “methods” for eliminating political adversaries. Given these two points, this book must outline the imperatives that a commitment to constitutional democracy implies, both in terms of the goals and the processes of transition. I argue that, as a normative regime, constitutional democracy minimally requires that transitional justice projects be organized, and organized in a way that lives up to the principle of equal concern and respect for everyone’s voice. As an institutional regime, constitutional democracy must strive to approximate this principle as closely as possible in practice: for example, through the more consistent application of rights to all citizens, through the creation of new rights, the enfranchisement of previously victimized groups, the legal punishment of perpetrators, the passing of legislation for reparative or compensatory schemes, the founding of inquiry commissions, and so on and so forth, depending on the political and legal culture of each context. As a cultural regime, constitutional democracy needs to reproduce itself across generations. This means it has to cultivate the kind of attitudes and emotions that support the work of institutions. Citizens’ politically relevant emotions represent an essential dimension of the public culture and, as such, they are an important object of concern for a normatively consistent and stable democracy. It has become clear by now that this book does not agree with political philosophers who argue, as a matter of principle, that the state be neutral and abstain from cultivating, sponsoring, and requiring certain

Introduction

15

attitudes, behaviors, emotions from the members of the political community.32 In this author’s view, to think about democracy politically is to see democracy as a complex normative and institutional regime that presupposes a democratic ethos—a set of politically relevant attitudes, modes of interaction, and emotions that need to be actively cultivated by institutions. Constitutional democracies need to socialize citizens to respect and live up to the ideals that it is normatively committed to and that are—more or less imperfectly—instantiated in its institutions. It seems uncontroversial to claim that democracies need citizens who are tolerant, open, responsive, accepting, as opposed to intolerant, hateful, contemptuous, etc. Without propitious attitudes, democracy cannot survive, let alone flourish. And this, I propose, requires institutions to encourage and sponsor certain forms of sociality and interaction. This labor of socialization is shared by various political agents, including the family, schools, the judiciary, and so on. One might still argue that the idea of channeling politically relevant emotions has some disciplinary resonances. Judicial engagement with emotion is necessarily an asymmetric process, and one could reasonably worry about the specter of emotional regimentation. Such fears can be easily dispelled as the account of judicial pedagogy I offer in the following chapters is dialogic and conceives of good judicial decisions as invitations to reflection. Building on insights from legal and political theory, I will argue that legal pedagogy depends on the exemplarity and inspirational quality of judicial decisions, i.e., on their capacity to mobilize the political, legal, and cultural sources provided by the context so as to communicate their message and invite citizen to follow in judgment. A second issue that needs to be dealt from the start is that of paying due recognition to those who have paved the way for this project. In the last decade there has been a surge in interest in emotions within transformational moments. Forgiveness, postatrocity trauma, shame, humiliation, and anger have been widely explored in transitional justice scholarship.33 Relevant for this project, some recent work in the transitional justice literature has attempted to defend the legitimacy of negative reactions in postconflict situations. This literature’s main goal is to offer a critique of the exaggerated value placed on forgiveness and reconciliation by the South African Truth and Reconciliation Commission (TRC). Panu Minkkinen conceives of resentment as an

16

Introduction

“inalienable right” that should not be violated by pushing victims into officially organized venues of forgiveness.34 A similar view is defended by Paul Muldoon who thinks that the pressure to forgive and to reconcile compromises justice and undermines the victim’s dignity and the right to be angry.35 Rebecca Saunders has recently argued that there are serious normative and psychological problems that generally accompany any institutional effort to encourage forgiveness and suppress resentment against victimizers.36 Thomas Brudholm looks at the South African TRC’s celebration of forgiveness through the lens of Jean Améry’s account of ressentiment and problematizes Desmond Tutu’s “political sins”: Tutu used the private language of forgiveness in the public sphere and provided Christian injunctions that sat uneasily with the requirements of public reason. However—and most important—Tutu was wrong to make forgiveness a mark of good character and relegate resentment to pathology or vice. The archbishop failed to understand that anger might be linked to a passion for justice and to a sense of moral duty to those murdered: he failed to see that the refusal to forgive might signal attachment to a set of moral norms. Last but not least, Sonali Chakravarti joins the voices of those who defend the moral value of anger and analyzes victims’ testimonies given in front of the South African TRC. Based on a close reading of emotionally anchored testimonies, she proposes that anger gives the audience information about the speaker’s needs, interests, and fears; it targets the limits of what is possible in terms of repair or punishment and infuses political life with energy.37 While acknowledging these scholars’ efforts to draw attention to the relevance and legitimacy of resentment within democratizing contexts, this book seeks to go beyond the specific interest in the limitations of the TRC. It aims to delineate a systematic account of resentment and indignation as politically relevant emotions, problematizing their nature, sources, and modes of expression. A multitude of philosophical sources will be mobilized with a view to providing a theoretically complex understanding of these emotions as markers of a sense of justice and as a crucial part of a democratic emotional culture. In addition, the book explores how the politically transformative power of negative emotions could be tapped and channeled for democratic purposes through institutional projects of emotional socialization. Thus it follows in the footsteps of these

Introduction

17

groundbreaking pioneers, but complicates their theoretical insights by outlining the contribution negative emotions might make to the political future of postconflict societies beyond the rather particular context of a TRC. The third issue that needs to be addressed at this point is the decision to focus on courts. I understand the role of courts to be a complex one. In contrast to those who theorize courts as independent from politics, I engage with bodies of literature where courts are seen as political agents who can perform important political functions.38 I argue that, besides delivering decisions according to the law, they can play an important role in cultivating the ethos (attitudes, beliefs, emotions) a democratic regime depends on. Courts can do this through exemplary decisions—decisions that harmoniously combine concerns about legality and pedagogy. However, they cannot achieve this task on their own: it takes a concerted institutional effort and time to rebuild the ties of social trust, to promote respect, and to combat hatred and disgust in the wake of violence. Given the importance of such an ethos, given the symbolic weight and the visibility that courts often enjoy as agents of justice in the aftermath of oppression, I argue that they can—and should—be aware of their broader potential contribution to the health of democracy. While there is no recipe for how better to channel resentment and indignation toward democratic goals, judges have historically engaged with politically relevant emotions, as some of the case studies discussed here will testify. If we agree courts can make a contribution to democratization, the next step in the argument is to explain why domestic courts are better positioned than international ones to face such challenges. One could rightly point out that, in many postauthoritarian or postconflict contexts, domestic courts suffer from a variety of shortcomings. The personnel have often been appointed under the previous regime and are therefore professionally compromised.39 Moreover, domestic courts have often been involved in oppressive practices themselves, working to implement the unjust laws of authoritarian regimes. At best, they were powerless bystanders. They also often lack the necessary legal infrastructure and financial resources to do the work of transitional justice—or any justice, for that matter. All these problems cast doubt on the idea that they can perform the recognition and socialization functions this book claims they should perform. One might therefore

18

Introduction

be tempted to opt instead for international or hybrid courts, as they appear to be better equipped for such purposes. And yet, as observers of supra-state courts have shown, they are also plagued by a number of deficiencies.40 First, they too suffer from underfunding and understaffing, perpetually depending on the will of nation-states to continue to function. Second, more collaborative work is necessary to synchronize the various legal traditions that different lawyers rely on in adjudicating cases. Most of these courts are yet to build a coherent and consistent jurisprudence that would enable a measure of accountability and the stability of expectations. Third, the distance between such courts and the societies where violence occurred has severely eroded the perception of these courts’ legitimacy.41 The targeted societies often see the establishment of these courts as another form of Western imperialism or “victor’s justice,”42 enforced in a top-down manner by unaccountable foreign experts. Such a perception is aggravated by the fact that Western powers have often supported, militarily and financially, the perpetrators that are later brought to justice. Fourth, because of their slow pace and often obscure procedures, witnesses invited to testify felt they had not been heard. By design, international courts have a different perspective on the proceedings: their priority is not to deliver quick justice or promote national processes of recognition, reconciliation, and reconstruction, but to strengthen international law and entrench their own institutional authority.43 Consequently, victims’ moral anger is not recognized in a way that would enable them to feel ownership over the justice process in these courts. Beyond their particular shortcomings, it must also be said that national and international courts share a number of weaknesses. Law’s incapacity to deal with the systemic and collective dimensions of violence and to capture the magnitude of atrocity has been widely discussed since Hannah Arendt’s Eichmann in Jerusalem was published long ago.44 Its tendency to individualize guilt, to prosecute selectively, and to ensure the strict protection of the defendant’s rights come at the price of a more comprehensive view of complicity in—and benefit from—abuses. As will become evident later on, this book agrees with this evaluation and sees criminal law as one among many potential mechanisms for addressing a painful past. True, there is a sense in which the individualization of guilt through legal trials can lead to

Introduction

19

processes of reflection about collective complicity with injustice within the broader society. While law can do its part by individualizing guilt, other institutional mechanisms can—and should—problematize the complicitous behavior of bystanders, collaborators, and beneficiaries of violence. For example, public apologies, commemorations, rewriting history manuals, public art and monuments, as well as programs of redistribution, can serve these broader goals. Notwithstanding the imperfect nature of legal responses to violations in general, and the risks associated with domestic tribunals in particular, I propose that there are still several reasons why, for the time being at least, domestic courts are to be preferred to international courts. First, a sense of a community and a common purpose cannot be easily established between international lawyers, on the one hand, and victimized societies, on the other. While there may come a time when accumulated experience will enable supranational courts to set up meaningful outreach programs that might foster a sense of the commonality of purpose, reports currently show that there is a great deal of distance—not just geographical, but jurisprudential, political, methodological, and cultural—between the Western lawyers, on the one hand, and the communities involved, and their values, on the other.45 The exclusion of the most affected should not be the price for eliminating bias.46 Second, transitional trials held in national courts can reaffirm the state’s capacity to govern and (re)establish the authority of courts to do justice. In Mark Osiel’s words, “Properly conducted, national prosecutions can enable states to re-establish themselves as moral authorities that legitimately represent an entire society, including groups that were recently repressed.”47 Allowing national courts to step in might thus be important from the point of view of institutional (re)construction. A long-term vision should inform processes of transitional justice: in view of strengthening the local legal system and encouraging respect for the rule of law, priority should be given to domestic tribunals.48 Civil trust in the judiciary will not be (re)built if courts are not given a chance to make their contribution to democratization. The desire to entrench their institutional power domestically and to gain recognition internationally has driven the judiciary to strategically serve constitutional democracy.49 Third, and most important for this project, the cultivation of democratic emotions presupposes the judges’ capacity to issue inspiring, contextualized judgments.

20

Introduction

Since this capacity depends on a deep familiarity with the context and temporal awareness about the priorities of the transition, domestic judges are better positioned than international lawyers. True, it is this “embeddedness” that also makes the trust in national courts a risky business. However, provided that certain basic guarantees are in place, national courts are in a better position to mobilize the necessary cultural, historical, and legal resources that can make their decisions resonate within the larger society. Fourth, it appears that the division of labor between judicial and non- or pseudojudicial bodies is more easily established at the domestic level. As Martti Koskenniemi points out, there is as of yet no truth commission at the international level that could supplement and reinforce the work of the international courts.50 Productive collaborations between truth-seeking and justice-making institutions at the domestic level can pave the way to a more complex project of transitional justice, one that could successfully balance the twin imperatives of recognizing violations and promoting a culture of respect for the rights of others.51 This is not to say that domestic and international courts can—or should—work in absolute separation. International law serves as a source of legal categories and as a check on domestic transitional justice processes, while national courts strengthen international law when they accept it as enforceable locally. International or regional courts represent alternative avenues of redress and offer important jurisprudential tools to the national courts. Crucially, they pressure domestic judges to balance their deep knowledge of the context with a concern for protecting the universal rights of both victims and perpetrators. In recognition of this interdependence, international lawyers should therefore aim to facilitate and enable—not hijack—transitional justice efforts by societies coming out of violence and oppression.52 Methodologically, this book is essentially a theoretical, normative enterprise, meant to enrich the ways in which we think about justice and its circumstances in the wake of violence. By looking at the emotional dimension of a democracy’s public culture in a way that brings together lessons from various disciplines and areas of inquiry, I hope to add new insights to a mature field of transitional justice research, already mapped by a multitude of theoretical positions. My ambition is not inductive: case studies will be used merely illustratively. Nor is it predictive: to the extent that I outline ideas about how emotions could

Introduction

21

be productively engaged with institutionally, I am hoping to delineate conditions that are necessary—but not sufficient—for effective emotional socialization. The “necessity” of these conditions is however not causal, but normative: in the absence of certain transitional justice measures—irrespective of their contextual nature—democracy might no longer be recognizable as such, since it would depart from its basic commitments to equal respect and concern for all. The purpose of the empirical analysis is therefore twofold. First, real-life examples are meant to show the relevance and timeliness of the questions I discuss, give concreteness to my arguments, and make them clearer and more persuasive. Second, the exploration of historical instances of transitional justice can reveal the multiple ways in which my general theoretical argument can be, and has been, instantiated in various ways, without thereby being diluted or losing significance. This is in line with my overall commitment against unique formulae for solving the complex problems that this book engages with. In chapter 1 I will outline a positive answer to the justificatory question, Why should a society engage with a painful past? This question has structured the transitional justice scholarship into two debates about the purposes of postconflict justice: Truth versus Justice and Stability versus Justice. Following a growing consensus in the literature, I propose that there need not be a trade-off between justice and truth; different institutional mechanisms can accomplish different tasks within the volatile circumstances of transitions. However, the second debate, that between stability and justice, still divides the field. By drawing attention especially to the normative weight—but also to the strategic value—of resentment and indignation as evaluative responses to oppression and injustice, chapter 1 dismisses the skeptic’s fear of their negative impact on a stable democratization. I argue that the tension between justice and stability is both normatively implausible and prudentially self-defeating. In order to substantiate the theoretical claims in chapter 1, we need to unpack the multiple dimensions of public emotions—in terms of both the obstacles and the opportunities they create for the institutional entrenchment of democratic norms. In this sense, it is necessary to formulate a precise conceptualization of the individual’s sense of justice and its relationship with feelings of resentment and indignation. Why does democracy need to be concerned with these feelings? What

22

Introduction

kind of emotional responses are they? By virtue of what characteristics can they be socialized? What makes them potentially dangerous, and what makes them potentially beneficial for democracy? These are questions that chapter 2 will seek to answer. Building on insights from moral and social psychology, I will put forth a weak social constructionist, cognitivist view of resentment and indignation, which will be theorized as negative feelings associated with a violated sense of justice. This foray into the morphology of the sense of justice will help us strengthen the arguments presented in chapter 1 and provide a framework within which to address the second programmatic question: How should societies distribute postoppression justice with a view to reproducing democracy institutionally and culturally? In chapter 3 I move on to a theoretical account of how the judicial review of transitional justice bills should affirm the integrity of democratic principles and, at the same time, constructively engage the resentment and indignation characterizing postconflict circumstances. In order to sketch a theory of adjudication that takes the emotional dimension of transitions seriously, Ronald Dworkin’s famous theory of “law as integrity” will be supplemented with elements from the literature on reflective judgment and the sociology of law. The first claim this chapter advances is that maintaining the integrity of democratic principles requires judges who review transitional justice legislation to recognize victims’ legitimate negative emotions. Second, decisions that reaffirm egalitarian principles might also have a beneficial pedagogical effect on their addressees’ sense of justice. To the extent that courts consistently act with equal concern and respect toward all individuals, they exemplify and communicate democracy’s demands on citizens’ attitudes, dispositions, and emotions. The particularity of the context will naturally influence the form these decisions take; however, exemplary judgments guided by equal respect and concern for all can simultaneously affirm democracy and engage outrage constructively. The South African Constitutional Court’s decision in the Biko case and the Argentine overturn of amnesty laws protecting the military junta that ruled the country between 1976 and 1983 are explored as illuminating illustrations of the theoretical arguments. By the end of the chapter, a more robust theoretical understanding of the role that judicial review can play within democratization efforts will hopefully emerge.

Introduction

23

Chapter 4 examines the potential of transitional criminal prosecutions to contribute to emotional socialization and, indirectly, to democratization. I enter a critical dialogue with a variety of theoretical positions that recognize the educational role that criminal trials can play. Existing accounts of penal law’s pedagogical contribution within democratic transitions focus on the construction of founding narratives, the encouragement of respect for the rule of law, and the cultivation of democratic solidarity. My aim is to try and disclose another, subtler, dimension of legal didactics: the potential for exemplary, principled decisions to recognize and constructively engage their addressees’ sense of justice and the emotions it presupposes. Peru’s proceedings against Alberto Fujimori and the facade trial of the Ceauşescu family in December 1989 will illustrate how respect for legality constitutes a precondition for any exemplary judgment that can further processes of democratic emotional socialization. The conclusion recapitulates the major arguments, sketches further directions of research, and addresses potential criticisms. The main contribution this book hopes to make toward a political theory of democratic transitions rests with the recognition of the role that emotions such as resentment and indignation can play in the normative and cultural reproduction of the democratic order. In using insights from moral and social psychology, the literature on reflective judgment, democratization studies, and comparative law, the book hopes to answer the two guiding questions—justification and distribution—in a way that contributes yet another layer of complexity to the scholarship on transitional justice. By drawing attention to one of the less theorized dimensions of democratic transitions, that of citizens’ politically relevant emotions, I hope to inspire novel ways of thinking about institutional engagements with a painful past of violence and oppression. Nevertheless, we must not forget that, in a sense, democracies are perpetually undergoing changes that strain their citizens’ emotions. A careful consideration of the emotional aspect of a society’s political culture can help refine our understanding of politics and institutions within diverse, so-called consolidated democracies. The theoretical framework developed here can be useful for problematizing the reality of imperfectly just democratic societies, plagued by different kinds of oppressive practices and institutions, that underlies the negative emotions of misrecognized members of the political community.

1 T r a n s i ti o n a l J u s t ic e 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

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Transitional Justice

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

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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

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Transitional Justice

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 vio-

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lence 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

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Transitional Justice

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

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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 between publicly perceived institutional legitimacy and political stability.33 This is why, in order to stand a better chance of persuading her, we need to disclose the positive prudential implications of a principled engagement with the past. The prudential merits of my normative argument become clear once we conceive of constitutional democracy as having a cultural dimension. Like any other political regime, constitutional democracy depends for its reproduction on the robustness of a public culture of mutual respect and concern. This culture covers the public’s politically relevant attitudes, dispositions, and emotions. In the aftermath of violence and oppression, reforming laws and structures is an important part of democratization, but not the only one. In addition, the creation—or revitalization—of a public emotional culture supportive of the institutions and the values they embody is an equally important objective.

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I argue that the negative emotions that usually accompany transitions are responses to political oppression and violence. By virtue of their ability to signal injustice, these emotions can be of great use for the maintenance and reproduction of democracy as a normative, institutional, and cultural order. It is true that, due to the nature and intensity of previous abuses, heightened emotional mobilization has often led to cycles of violence in which victims turn into victimizers. In order to fructify the evaluative force of these emotional responses and avoid a relapse into abuse, citizens’ emotions need to be recognized and oriented so that they become responsive to claims nested in fundamental democratic values. Democratic pedagogy implies the cultivation of democratically acceptable forms of emotional expression. While constitutional democracies can recognize the legitimacy of resentment and indignation as reactions to injustice, the way in which people act on those emotions, as well as the targets of those emotions, must make the object of institutional attention. In addition, resentment and indignation by victimizers and their supporters can also imperil the course of democratization. While efforts must be made to avoid the equivalence between victims’ and victimizers’ claims of redress and visions of history, institutions must dialogically engage the latter, as well as their supporters, to explain why their resentment and indignation at being deposed from power or being prevented from executing campaigns of extermination against political opponents are democratically inappropriate. While the pedagogical effort might fail given the stakes involved, it is imperious that institutions consider the potential impact they can have. Even more important, in some cases transitional justice provides an opportunity to engage apathetic onlookers and bystanders who have failed to become indignant at ongoing violations, thus more or less knowingly facilitating the abuses. As we shall see, it is crucial that institutions are aware of the multiple audiences of their effort to initiate attitudinal and emotional calibration projects.34 The main claim of this chapter is that carefully orchestrated transitional justice processes should perform three important functions for a young constitutional democracy. First, by recognizing appropriate negative emotional reactions toward former oppressors, such projects recognize every citizen’s right to be treated with equal concern and respect and provide second-order enfranchisement to survivors. However,

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both victims and victimizers should to be given a voice within public institutions. Only thus can the normative integrity of constitutional democracy be preserved and citizens’ perception of institutional legitimacy strengthened. Indirectly, perceived legitimacy can contribute to the stability of institutions. Second, prudentially, creating a proper venue for emotional expression can help prevent these emotions from being expressed in abusive, destabilizing ways: extrajudicial killings and revenge, scapegoatism, or wild purges.35 Third, by constructively engaging the negative emotions exhibited during transitions, the development of a democratic emotional culture could be stimulated. Resentment and indignation are essential for identifying legitimacy deficits. When oriented by the principle of equal concern and respect for all, they can function as important aids for any democratic regime. In the wake of atrocity, institutions should filter these emotions so as to avoid the abuse of victimizers for the sake of satisfying victims’ desire for vindication. Moreover, interacting with resentful deposed victimizers might provoke reflection within their supporters’ camp, if not by the oppressors themselves. While there is no guarantee for success, exemplary political and institutional judgment is necessary in order to maximize the chance of securing the positive contribution these emotions can make to the reproduction of democracy. These arguments will structure the theoretical contribution this book seeks to make. Before moving on to the next section outlining the transitional circumstances of justice, I would like to make some brief remarks about what I consider to be the realist’s problematic understanding of the relationship between time, justice, and democracy. The realist’s emphasis on a logic of consequences leads to a tragic disregard of the ways in which the past informs and constructs both the present and the future. A perspective that limits the purposes of corrective justice to the immediate deterrence of perpetrators and “spoilers” overlooks all the other important objectives that can be served by such projects. Even if we agree that deterrence is important, we need not conceptualize it so narrowly. A broader understanding—one that looks beyond the discouragement of direct perpetrators and targets the global society of witnesses to atrocity—would make rectificatory justice programs imperative. It is unlikely that major perpetrators of human rights violations would be deterred by threats of prosecution once they have unleashed their forces against their perceived enemies.

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Nevertheless, justice processes could warn future potential violators of the possible consequences of violations. The Never again! inherent in such legislation is geared toward present and future generations and is meant to steer the identity of the polity away from violence and oppression. It is likely that the fruit of trials or truth commissions will take a very long time to ripen. Experience has taught us that the effects of justice cannot be seen immediately. Therefore, we should wait for a little longer before losing patience with the most recent innovations in postconflict justice. Rectificatory legislation is future oriented in yet another way. The promulgation of a democratic constitution and of related legal reforms produce a first-order political enfranchisement; however, citizens do not share an equal starting point. Taking the past seriously requires further enfranchising victims through the enactment of corrective legislation aimed at leveling the political playing field. Only thus can citizens develop a sense of allegiance to the new institutions and benefit from the empowerment that comes with the recognition of equal status. Transitional justice processes provide victims with a forum of representation wherein their previously silenced voices can be safely expressed. A consistent affirmation of the equal respect and concern owed to all citizens thus requires a second-order enfranchisement through postoppression justice mechanisms. In the absence of recalibration efforts, the quality of the future democracy would be affected. One might reasonably object that second-order enfranchisement makes no sense in the many cases where atrocities were committed by both parties to a conflict, where victims were at the same time perpetrators and where it is difficult—if not impossible—to distinguish between the two. Rajeev Bhargava has labeled this scenario “symmetric barbarism” and claimed that,36 even under such circumstances, establishing a truth commission would be a means to restore a minimally decent order. However, attempting to close the books without any form of acknowledgment, remembrance, and collective acts of assuming responsibility would only benefit the guiltiest and would allow the past to haunt the future. While I want to acknowledge the practical difficulty of distinguishing between perpetrators and victims, I do not want to conclude that engaging with the past should be forgone. I agree with Bhargava that some form of reckoning with history is necessary in order to seal the commitment to minimal norms of

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human decency. All parties need to take responsibility for the state in which society finds itself in the aftermath of conflict. In this sense, in the case of symmetric barbarism, the second-order enfranchisement shifts from the empowerment of victims to an assumption of responsibility across the board. While in the case of asymmetrical barbarism the second-order enfranchisement is meant to represent and empower the silenced weak, when all parties to a conflict commit atrocities it implies a symmetrical, sober acknowledgment of responsibility.37 By itself, the fact of symmetrical barbarism provides no solid justification as to why dealing with the past should be off the table for good. The difficulty of assigning individuals to clear groups of victims and victimizers only means that the institutions involved in transitional justice projects have to provide safe arenas for competing visions of the past to be aired and engaged with in view of filtering legitimate from illegitimate negative emotions. Transitional justice is therefore an essentially political project, through which alternative claims about the past need to be engaged with in order to push the polity on the path to constitutional democracy. And it could be the case that some institutions are better at dealing with the issue of contested victimhood than others. This book looks at how the judiciary and law should play their part in these complex, messy, and often unpredictable processes of political transformation. The cases included in this project show just how judges have managed to mobilize jurisprudential tools and legal doctrine for the purpose of discriminating between various claims to victimhood—the Argentine and the Peruvian case being emblematic in this sense. Therefore, while transitional justice is bound to be imperfect, selective and incomplete, the obstacles the realist focuses on can at most postpone, but not justify, forgoing it. To conclude my case against the realist’s problematic understanding of the relationship between time, justice, and democracy, let me just add that her emphasis on the future-oriented establishment of the rule of law—as opposed to the backward-looking character of transitional legislation—also does not seem plausible.38 It is true that a democratic constitution has a forward-looking role in setting the parameters of collective identity in the language of rights, but it also looks back at the past, defining itself in opposition to the arbitrariness and abuses of the previous regime. This fact can be seen in the changes in institutional arrangements that appear from one constitution to the other:

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the boundaries of institutional competences and the contours of the demos itself are redrawn, while the relationship between domestic and supradomestic constitutional fora gets renegotiated. Many new constitutions contain emphatic declarations of principles that denounce a past of discrimination and injustice in order to draw a line between the arbitrary practices of the past and the hope of a peaceful democratic future.39 Therefore the past inevitably infiltrates the form and the content of democratic institutions and laws. Having made this brief detour into the realist’s temporal framework, it is time to take the next step in the exploration of our alternative conception of transitional justice and its role in democratization. An account of the circumstances of transitions to democracy will provide the background for my two arguments in favor of rectificatory projects.

DEMOCRATIC SHIFTS AND THE EMOTIONAL CIRCUMSTANCES OF JUSTICE Democratic shifts are generally seen to cover changes exemplified, at one end of the spectrum, by such phenomena as the rights revolution in the United States and, at the other, by the more profound transformations of societies coming out of major conflict and oppression. Normatively, such transformations usually involve adopting new political principles or reinterpreting old ones. These are all part of a continuous and gradual—but also sometimes abrupt—movement toward a more inclusive understanding of the political community. Institutionally, these normative changes get manifested in the (re)writing of constitutions, the revision of old statutes, the annulment of “evil laws,”40 the creation of new rights, or the more extensive application of the existing ones. Be they more or less profound, such transformations lend themselves to multiple layers of theorizing and usually lead to practical dilemmas. Some of the most pertinent questions one could ask are: Who initiates the normative shift—institutions or groups within the civil society? How can the citizens of a community be motivated to accept and to consistently act on the recently (re)institutionalized principles? What happens when these principles are in strong tension with the individuals’ dispositions, desires, and reactive emotions?

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These questions bring us to the socio-emotional dimension of a democratic political culture. Democratic shifts need the backing of a supportive political and emotional culture. However, motivating citizens to adapt behaviorally and attitudinally to change is a difficult task in the aftermath of radical democratic shifts. Such contexts face an important predicament: on the one hand, the adoption of democratic attitudes is of paramount importance for the functioning of democratic institutions; on the other hand, we cannot expect such attitudes to flourish spontaneously overnight. In the classical political science literature the “consolidation” of democracy is thought to have three dimensions: Behaviorally, a democratic regime in a territory is consolidated when no significant national, social, economic, political or institutional actors spend significant resources attempting to achieve their objectives by creating a non-democratic regime or turning to violence or foreign intervention to secede from the state. Attitudinally, a democratic regime is consolidated when a strong majority of public opinion holds the belief that democratic procedures and institutions are the most appropriate way to govern collective life in a society such as theirs and when the support for antisystem alternatives is quite small or more or less isolated from the pro-democratic forces. Constitutionally, a democratic regime is consolidated when governmental and nongovernmental forces alike, through the territory of the state, become subjected to, and habituated to, the resolution of conflict within the specific laws, procedures and institutions sanctioned by the new democratic process.41

Although I find the split between these three dimensions rather artificial, Linz and Stepan do capture the importance of the entrenchment of democratic dispositions within the citizenry at large. Loyalty to the values expressed in democratic constitutions needs to be owned up to. However, it is generally the case that, in the aftermath of oppression, years must pass before hopes of a democratic political culture and a lively and independent civil society can be entertained. Democratic predispositions are not always present to sustain the complex processes of legal, political, economic, and social reform that enable the consolidation

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of the new political order. Mutual respect, the willingness to listen, to exchange arguments and to include the points of view of all affected, tolerance, and social trust are frequently absent in war-torn or state-victimized societies. On the contrary, hate, lack of trust, resentment, and indignation dominate the public emotional repertoire. Resentment has rarely been listed among the “good” emotions by students of politics. The central place ressentiment occupied in Nietzsche’s account of the genealogy of morals has stigmatized this emotion for political theory.42 Moreover, within legal thought, the relationship between resentment and the desire for revenge has played a central role in the theoretical justification of modern legality. Through processes of legal justice, the irrationality of a resentful drive to retaliate is translated into cool, rational, and proportional retribution at the hands of the state.43 Its hypothesized resilience and obsession with the past, as well as its incompatibility with forgiveness and reconciliation,44 have led political scientists and historians to share the philosophers’ verdict and relegate resentment to a category of emotions in need of management and silencing.45 Indignation has not been free of suspicion either. The fact that outrage frequently comes to the fore too late and that bystanders often publicly act with unwarranted self-righteousness, has made scholars wary of this emotion’s claim to legitimacy. Its strong association with hypocrisy has also contributed to strong skepticism against its credentials as a legitimate democratic emotion. In addition, its capacity to mask vendettas and scapegoatism has not escaped criticism.46 This negative account of resentment and indignation can easily support the realist’s prescriptions to democratizers. Given the emotional mobilization that accompanies major transformations, it would be a mistake to provide an institutional arena for a showdown of hatreds. However, I argue that we need not give up on these emotions.47 Potential avenues for recuperating and putting them to use in the reproduction of a particular political order can be imagined once we consider the evaluative dimension they presuppose. Thus I argue that we must dismiss a crude understanding of these emotions as mere irrational responses to stimuli and recognize their evaluative dimension. Victims’ resentments and indignation cannot be regarded merely as dangerous threats. As markers of a sense of justice, they bear normative weight and should be recognized as legitimate

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objects of concern by decision makers. Such emotions act as valuable signals of alarm that injustices need correction. Therefore suppressing them is not in the interest of the agents of democratization. In addition, ignoring the past by silencing the victims can have two practical negative consequences. On the one hand, widespread apathy and cynicism may slowly permeate civil society. Institutional failure to live up to proclaimed standards leaves citizens feeling disempowered and abandoned. These attitudes have often permitted the hijacking of democratization processes by partisan interests.48 Alternatively, resentment can be reproduced from one generation to another, always latent and ready to erupt in abusive ways. The stability of the newly established regime will thus perpetually remain precarious. Victimizers’ resentment and their supporters’ indignation at losing power are also important vectors for democratic regimes. Since institutions depend on citizens’ backing for their survival and good functioning, it is crucial that they dialogically engage with those who lost the political game in order to “woo” them to support the democratic cause. A clear distinction must be made between victims’ and victimizers’ claims of redress in terms of their compatibility with democratic norms of social interaction, and imaginative measures should be taken to nurture democratic attitudes within the public sphere of transitioning societies. Left unaddressed, the losers’ negative emotions might fester and fuel further attempts to reverse democratic gains, as some of the empirical cases included in this book will show. Needless to say, in all these scenarios the quality of democracy would be diminished as a result of missing a great opportunity to affirm democratic equality and initiate socialization into the democratic rules of emotional expression. Given political will and inspiring reflective judgment, such dangerous outcomes can be avoided. By now it should have become clear that this book conceives of democratic legitimacy as a necessary ingredient for the stability of institutions. Because of their inherent connection with the satisfaction—or frustration—of citizens’ moral and political expectations, negative emotions are crucial for legitimacy considerations. By living up to democratic citizens’ expectations in a principled manner, institutions become legitimate, the level of social mobilization decreases, and with it the potential for instability. In the aftermath

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of dramatic normative and political shifts, transitional justice processes can clearly and directly contribute to the institutional satisfaction of citizens’ expectations of recognition and vindication. The expectation of being treated with respect by institutions and by one’s fellow citizens is emotionally charged in the aftermath of violence.49 Within postoppression contexts, victims demand that political equality—and sometimes implicitly moral equality—be (re)established. Resentment and indignation can be related, first, to the experience of first-hand victimization by the former regime and, second, to the failure of the successor elites to address legitimate claims to justice. In other words, before the democratic shift, violence, arbitrariness, and oppression usually lead to resentment by specifically targeted groups and indignation within the population at large. The intensity of negative feelings depends on the heinousness and duration of the human rights violations. There is a difference of degree between resentment at being denied reasonable opportunities to express oneself politically by an authoritarian regime and resentment at being made a prisoner of a labor camp. Third parties’ indignation also varies with the seriousness of the harm inflicted on the victims. Sometimes these reactions mobilize the body politic in a way that brings about change from the bottom up.50 In other contexts, they remain latent and only get publicly expressed with the advent of safer times. It is important to note that democratic change is imagined most of the time as the establishment of normalcy in the sense of the creation of—or a return to—conditions of equality before the law and governmental predictability. These expectations, stifled because of fear and lack of social trust, naturally come to the fore and demand satisfaction. Should they be denied voice once again, the injury and insult toward victims would be compounded and the integrity of the democratic normative regime would be imperiled.51 In addition, political apathy and disillusionment might prevent the performance of accountability functions by civil society, while the stability of the political regime would be perpetually threatened by unvindicated negative feelings, potentially reproducing themselves across generations. The onus is therefore on the young democratic institutions to prove that they can stay true to the commitments expressed in the postconflict constitutional documents. This, I argue, inherently implies

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a response to the demands of transitional justice. Normative consistency, understood as a commitment to act according to the principles of constitutional democracy, requires that we deal with betrayed, yet legitimate, expectations in a way that acknowledges the appropriateness of reactive feelings, provides them with a safety valve, and addresses the injustices of the past. It is only in this way that victims and victimizers’ interests will not be sacrificed for the sake of stability. In addition, the exemplarity of institutional consistency in the affirmation of democratic values can act as a catalyst for the development of a democratic emotional political culture within the citizenry. By responding to public emotional mobilization in a way that (re)affirms the equal concern and respect constitutional democracy posits for all citizens, institutions live up to previously frustrated expectations, gain legitimacy, stimulate social support for necessary institutional reforms, and thus ensure their own stability. The last section of this chapter will provide a theoretical account of democratic normative consistency and the burdens and duties it creates for both the citizens and institutions of the new democratic regime. The broad suggestions made in this last section will be further elaborated in the second part of the book when we turn to the issue of the distribution of transitional justice. For now, suffice it to outline the possible institutional implications of the establishment of a constitutional democratic order.

THE EXEMPLARITY OF INSTITUTIONAL NORMATIVE CONSISTENCY What does it mean to consistently act with respect to democratic values in the wake of dramatic political transformations? At the individual level, consistency requires a readiness to bear the burden that the norm of equal respect places on us. Accepting the strains of commitment to the value of equal liberty implies reflectively endorsing the protections this value provides not only for the victims but also for the victimizers. Citizens need to understand that, if they are to stay true to their newly proclaimed standards, they need to extend respect to everyone; that is to say, democracy places limits on the kind of acts that can be performed in the name of violated moral expectations.

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But, as we have seen so many times in history, controlling one’s outraged sense of justice does not come easily. The natural question to ask, then, is the following: How can institutions catalyze the endorsement of democratic respect across persons? First, providing safe arenas for expressing alternative visions of the past and competing claims to victimhood is essential. Democracy requires that everyone is given a voice and that contested claims to victimhood be decided inclusively. Recognizing the moral validity of legitimate anger—living up to the commitment to equal respect and concern for all—can inspire citizens to retarget and moderate their resentments and indignation. Consistency in the commitment to democratic values demands, first and foremost, that the polity decide on some form of transitional justice. Former victims need to see that their suffering is recognized and that the insult they experienced does not get perpetuated historically. Equal concern for all citizens demands that general enfranchisement through constitutional lawmaking be supplemented by a second-order redress enfranchisement through the promulgation and application of rectificatory legislation. Responses to wrongdoing in the form of transitional justice legislation can provide the crucial vindication that victimized societies long for.52 If this double process of enfranchisement does not occur, the risks of sliding back into violence and reproducing injustices runs high. Once the decision to engage in some form of rectificatory project has been made, it is imperative that institutions observe democratic norms consistently in legislation, adjudication, and policy making. In legislating, it forbids passing laws that would allow victimizers’ rights to be sacrificed for the sake of satisfying victims’ desires for justice. In reviewing legislation, it commands striking down as unconstitutional any transitional justice bill that would undermine the foundational norm of equal respect for all citizens. In trying victimizers, it requires contextualization, careful attribution of responsibility and attentive interpretation of law, both domestic and international, in a way that minimizes the dangers of scapegoatism and political revanchism. In establishing truth commissions, forgiveness should not be pushed on victims as a test of good character. In compensating, political judgment must balance carefully the competing claims of justice and expediency. The audience for all these institutional efforts is composed of the victims, victimizers, society at large, but also the international com-

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munity. Citizens’ ways of interacting with other citizens, but also with the state’s institutions, need to change. A period of accommodation and adjustment to the new realities is inevitably felt as strenuous, and social trust takes time to develop. While there is no guarantee of success, transitional justice projects should aim to engage individuals’ moral emotions and the judgments underlying them constructively. The institutional message should be that loyalty to political and moral egalitarianism requires respect for all members of the community, victims and victimizers, bystanders, and beneficiaries of injustice. Discontinuity with the abusive practices of the past cannot be achieved if indignation and resentment are vented through revanchist measures outside the procedural protections of the law. The entrenchment of reciprocity standards within the wider political and emotional culture should be counted as one of the many goals that transitional justice projects should aim to achieve, one that must be tackled exemplarily and in full awareness of the contingency of success. There is one concession this book is ready to make to the case of the transitional justice skeptic. Sometimes the climate of the immediate postauthoritarian or postconflict moment might not be propitious to justice processes. In such cases, democrats can concede the necessity to postpone, but not to forgo, the duty to listen to formerly disenfranchised voices.53 Of course, justice efforts are bound to be imperfect. Nevertheless, public debate about the legacies of violence cannot be stifled. Left to fester, anger can reproduce over time and erupt unexpectedly in destabilizing ways. Alternatively, political cynicism could become pervasive and affect the functioning of civil society. If the past is ignored, if public emotions are not engaged pedagogically, political legitimacy gets undermined and a great occasion to initiate socialization for a democratic future will have been missed. This chapter attempted to show the limits of the skeptic’s position. Forgetting cannot be imposed. Institutions living up to democratic commitments must recognize the voices of the resentful and the indignant. Different arrangements are suitable for different contexts,54 but we should not overlook common problems and a shared purpose: the establishment of a well-functioning democracy, which depends in this first instance—both for its normative integrity and the stability of its institutions—on the successful production and application of transitional justice legislation.

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But what type of emotions does democracy need from its citizens in order to reproduce itself as a regime? What kind of emotional culture does an egalitarian theory of human worth prescribe? What makes resentment and indignation compatible with such an emotional culture? These questions constitute the object of the following chapter.

2 T h e o r i z i n g R e s e n t m ent a n d I n d i g n a tion Self-confessed man of resentments that I am, I supposedly live in the bloody illusion that I can be compensated for my suffering through the freedom granted me by society to inflict injury in return. The horsewhip lacerated me; for that reason, even if I do not dare demand that the now defenceless thug be surrendered to my own whip-swinging hand, I want at least the vile satisfaction of knowing that my enemy is behind bars. Thereupon I would fancy that the contradiction of my madly twisted time-sense were resolved. —Jean Améry, At the Mind’s Limits

I don’t understand this word “reconciliation.” I can’t reconcile with people, even if they are in prison. . . . If a person comes to ask my forgiveness, I will pardon him after he has resuscitated the members of my family that he killed! —Genocide survivor, Rwanda (2002)

Abusive regimes imprison, kidnap, spy, torture, and kill, thus denying their victims many aspects of a purposeful life. Government-sponsored crimes can be placed on a continuum ranging from milder forms of coercion—restrictions on freedom of movement and speech, expropriation, denial of public services—all the way to genocide. Such actions are met, most of the time, with resentment and indignation. Resentment corresponds to the individual’s experience of injustice toward herself, whereas indignation is the feeling that arises from witnessing an injustice done to another. Sometimes these negative emotions mobilize groups to push for change. Once the regime of

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violence ends, victimizers frequently become the target of the emotionally charged desire for justice. Other times, the rulers’ subordination of society is so strong that atomization and apathy ensue, while negative emotions surface only after the violence has ceased, if at all. Irrespective of whether the transitional moment is characterized by violent manifestations of outrage or by apathy, these reactions are symptomatic of a deep problem that democratic institutions need to cope with. Recognizing the legitimacy of public emotions and, at the same time, initiating a process of democratic emotional socialization are two imperatives of transitional moments. Dealing with high levels of resentment and indignation seems to be a more immediate task from the point of view of stability, yet engaging societal apathy is just as important. Apathy—as much as resentment and indignation—can endanger the proper functioning of democracy, for it is often a marker of disillusionment with politics, distrust in public institutions, inversion of the moral compass, or perceived political powerlessness. While acknowledging apathy as one of the two possible extreme emotional attitudes that can characterize transitional moments, this project focuses on the outburst of negative moral feelings that can accompany political transitions. In this chapter I provide an account of the moral and social psychology of democratic transitional moments. Being a democrat implies, among other things, forming and expressing one’s emotions in a way that does not violate the principle of equal respect for all. As we saw previously, the emotional culture of a polity is part of its political culture and, as such, an important object of concern for institutions. Constitutional democracies can recognize the validity of the evaluative verdict inherent in resentment and indignation, but the targets of these emotions, the way in which they are expressed in practice, and the kind of actions they motivate must endanger neither the normative integrity of democracy nor the stability of the institutional order. More specifically, the individual’s sense of justice needs to be engaged in such a way as to recuperate its correct evaluation and channel its forms of expression. In order to unpack the multiple dimensions of public emotion in the early moments of democratic transitions—in terms of both the obstacles and opportunities it creates for the entrenchment of democratic norms—we need to work on a precise conceptualization of the individual’s sense of justice and of its relation to feelings of resentment

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and indignation. What is it that gives these feelings appropriate normative weight? What kind of emotional responses are they? In what sense are they both potentially dangerous and potentially beneficial for democracy, and why? The sense of justice or, alternatively, the sense of injustice, has been the object of theorizing in moral psychology,1 political theory,2 legal theory3, theology,4 and anthropology.5 I shall start by engaging two of the most influential accounts of the sense of justice in liberal political theory, those offered by John Rawls and Judith Shklar (“Liberal Democratic Accounts of the Sense of Justice and Their Limits”). No inquiry into the nature of the sense of justice can bypass the contributions by these two theorists. There are two important formal elements that make these accounts appropriate as a starting point for analyzing what it means to be morally resentful or indignant within transitional moments. The first element is the weak constructivist position on emotions that these two authors endorse. A weak constructivist views the principles guiding the sense of justice and its adjacent emotions as given by a theory of human worth. The biological is also given some weight, since the expression of moral emotions is thought to be emblematic of what makes us human. By contrast, a strong constructivist position denies any role to the biological and claims emotional responses are thoroughly the product of social construction.6 At the other extreme, a noncognitivist position would reduce emotions to mere physiological reactions devoid of any judgment.7 Second, the sense of justice is theorized as a durable disposition expressible in negative moral feelings. Second, for both Rawls and Shklar, the experience of injustice is usually met with public expressions of outrage: resentment by those who directly experience it and indignation by witnesses. While acknowledging the formal merits of these two accounts, it will become clear that they have limited usefulness for examining transitional contexts. It is exactly because the principles of constitutional democracies seldom give content to the sense of justice in transitional periods that Rawls and Shklar do not have the resources to discuss resentment and indignation outside such contexts. Sections “A Weak Constructionist View of Emotional Socialization” and “Constituting and Regulating Resentment and Indignation” will deepen our understanding of emotion by looking into the morphology and socialization of moral emotions in general and of the sense

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of justice in particular. In order to advance our project’s goals, this moral disposition will be conceptualized formally, divorced from the favorable conditions of a consolidated liberal democracy. Through an engagement with the recent literature in social and moral psychology, “A Weak Constructionist View of Emotional Socialization” discusses the mechanisms through which socialization partially constructs our emotional register and instills in us publicly appropriate forms of emotional expression. As we shall see, the internalization of emotional rules, no less than any other rules, constitutes us as members of a political and cultural community.8 I then narrow the inquiry and examine what a weak constructivist might have to say about the sense of justice (“Constituting and Regulating Resentment and Indignation”). This analysis prepares the ground for answering an important question, a question that Rawls and Shklar, because they connected the development of the sense of justice with the principles of constitutional democracy, could not answer: Is there any way democracy can recognize the legitimacy of negative reactions to the crimes of previous regimes when these reactions are not expressed in democratic language? The view I defend is that, while emotional claims by victims are constitutively compatible with democratic principles of justice, the endorsement of rules of emotional appropriateness needs to be institutionally stimulated, for reasons of both prudence and democratic normative integrity. In other words, while democracy recognizes the appropriateness of such emotional responses to violence and oppression, their modes of public expression, as well as their targets, need to be institutionally filtered so as to avoid the undermining of democratic values. When it comes to victimizers’ and their supporters’ negative emotions at losing power, institutions must find an efficient way of communicating their democratic inappropriateness and engaging them pedagogically in support of democratic principles. The last section of this chapter, “The Sources of the Sense of Justice,” will provide an account of the constraints that a constitutional democracy places on the public manifestations of negative moral feelings. My purpose is to sketch the principles of emotional appropriateness that such a regime needs to instill in its citizens, whether victims, witnesses, or victimizers. Voice cannot be given unconditionally; the normative, institutional, and cultural reproduction of democracy

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requires the establishment of checks on the target, type, and manner of public expressions of negative emotion. Let us now take a closer look at two emblematic views of the sense of justice, its object, development, and legitimate forms of expression. Rawls’s conception of the moral power to act on publicly embraced principles of justice and Shklar’s deploring the dormant state of this power within consolidated democracies will get us on our way toward a political theory of democratization that takes stock of the emotional dimension of the social order.

LIBERAL DEMOCRATIC ACCOUNTS OF THE SENSE OF JUSTICE AND THEIR LIMITS

Moral Powers and the Stability of Principles John Rawls has authored one of the most famous theoretical articulations of the sense of justice, an enduring moral sentiment that finds expression in feelings of guilt, resentment, and indignation. Because of his methodological commitments—his account is tailored for the well-ordered society and deals only marginally with nonideal conditions—Rawls will not have much to say about democratic transitions. However, I will examine his contribution in an attempt to see whether it can help us make formal sense of the morphology and mechanics of emotional reactions to injustice, irrespective of one’s account of the nature, sources, and content of the principles of justice. I first delineate his ideas as they appear in his 1963 article, “The Sense of Justice,” and in his two famous books, A Theory of Justice and Political Liberalism. A Theory of Justice sets out to provide a normative account of the derivation of the principles of justice as well as a descriptive moral psychology that would ensure the stability of this conception. I will not go into the extensive debate over the role of moral sentiments in the derivation of principles in the Original Position.9 What interests me for the purposes of this book is the aforementioned descriptive moral psychology that is meant to ground the stability of the two principles outside the Original Position. Rawls’s conception of the person is an essential ingredient of his theory of social justice. Individuals are conceived of as endowed with two

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moral powers: the capacity for a conception of the good and the capacity for a sense of justice. Similarity in the possession of these capacities is what normatively grounds equality for Rawls. This assumption is compatible with differences of degree between individuals in terms of the exercise of the sense of justice. These differences do not exclude anyone from the realm of justice, although they do entitle those with a more developed capacity to a special claim with regards to certain offices.10 But what exactly is the sense of justice? Rawls conceptualizes the sense of justice as a sentiment, a permanent governing disposition to act on principles of justice: “We develop a desire to apply and to act on the principles of justice once we realize how social arrangements answering to them have promoted our good and that of those with whom we are affiliated. In due course we come to appreciate the ideal of just human cooperation.”11 The development of this desire and the sustained motivational force of the two principles are conditioned by the experience of having repeatedly benefited from living within a fair scheme of cooperation. The stable disposition to act on recognized principles of justice is part of a thin theory of the good for the members of a well-ordered society: it is rational for individuals in the original position to want the members of their cooperative scheme to share in the possession of a sense of justice.12 Thus theorized, the sense of justice ensures the stability of the conception of justice. Within partial compliance theory, the manifestation of the sense of justice in negative feelings of resentment and indignation signals correctable injustices and can contribute to the greater approximation of the two principles in practice. Once acquired, this capacity moves citizens to support the institutional arrangements from which they have drawn advantages. In addition, it motivates them to set up just institutions or reform the existing ones, should justice demand it. By consistently acting on the sense of justice, we fulfill what Rawls identifies as the natural duty to support and further just institutions. Natural duties are duties that do not depend on one’s consent and that would be acknowledged in the Original Position, while positive duties include duties to uphold justice, to mutual aid and mutual respect. The most relevant negative imperatives are those demanding that moral agents abstain from injuring or harming the innocent, and these duties are owed to individuals as persons, not as members of a politi-

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cal community. The natural duty to uphold justice gets fulfilled once individuals develop a sense of justice and contribute their part to the maintenance of just institutional arrangements.13 Because of the need to provide the conception of justice as fairness with a stable basis within individuals’ psychology, Rawls engages in a reconstruction of the emergence of the sense of justice, a reconstruction that owes its inspiration to both empiricist and rationalist accounts of moral development.14 The basic idea is that of a gradual maturing process stimulated by positive interpersonal experiences. It is the manifest intention of others to act for our good—starting within the family and culminating in the political community of just principles—that enables the development of a sense of reciprocal justice as an acquired new motive. Rawls states that people’s tendency to answer in kind is a “deep psychological fact” making human sociability possible.15 It is our primitive natural emotions that ground our disposition to act on the two principles of justice. Rawls writes: One may say, then, that a person who lacks a sense of justice and who would never act as justice requires except as self-interest and expediency prompt, not only is without ties of friendship, affection or mutual trust, but is incapable of resentment and indignation. Thus a person who lacks a sense of justice is also without certain natural attitudes and certain moral feelings of a particularly elementary kind. Put another way, one who lacks a sense of justice lacks certain fundamental attitudes and capacities included under the notion of humanity.16

Though partially determined by a set of natural emotions that make us human, the sense of justice receives its content from the conception of justice that is publicly recognized and becomes efficient once just institutions have been firmly established and recognized as such: Since a well-ordered society endures over time, its conception of justice is presumably stable: that is, when institutions are just (as defined by this conception), those taking part in these arrangements acquire the corresponding sense of justice and desire to do their part in maintaining them. One conception of justice is more stable than another if the sense of justice that it tends to generate is stronger and more likely to override disruptive inclinations and if the institutions it allows

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foster weaker impulses and temptations to act unjustly. The stability of a conception depends upon a stability of motives: the sense of justice that it cultivates and the aims that it encourages must normally win out against propensities towards injustice.17

Thus Rawls’s presentation of the development of this moral power can be seen as belonging to a weak constructionist perspective: both general, natural maturing processes and the force of socialization are given their due within an account of the way in which moral development might take place in a well-ordered society.18 Rawls acknowledges the need to further elaborate on the motivational force of the two rationally derived principles in relation to the sense of justice as a moral sentiment. Within his conception of justice, this force has several sources. First, the principles are chosen by rational persons for their contributions to advancing human interests. Second, they are continuous with the love of mankind. Third, on a Kantian reading, acting on the principles of justice manifests individuals’ nature as free and equal beings. Last—and most important for my project—given the content of the principles of justice, feelings of guilt and resentment are aroused by injustices that offend one’s sense of justice. In this sense, we can see that Rawls might have envisaged a regulative function for these emotional responses within partial compliance theory.19 The main characteristics of the sense of justice remain relatively unchanged with the transition to Political Liberalism. Here Rawls shifts the locus of the two moral powers—the sense of justice and the capacity for a reasonable conception of the good—from the person to the citizen socialized within a political conception of justice suited for a democratic society. Rationality and reasonableness will be experienced as good by individuals as citizens and not as persons—this distinction being crucial for Rawls’s attempt to shed the comprehensive philosophical elements of A Theory of Justice. The basis for the citizen’s moral motivation relies on a power to form a conception of the good and the capacity to acquire a conception of justice. Citizens have a desire to act on the principles of justice when they believe the institutions they found are just and that others will do their part in upholding them. From within their comprehensive doctrines, they will find the motivational sources to support the principles comprised in the public conception of justice. This enables

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the development of social trust between the integrated members of the cooperative scheme. Trust stabilizes with the enduring success of their joint efforts.20 The satisfaction of the publicity condition is essential as it places the conception of justice in the public culture of the polity, thus enabling its educational role: “In this way citizens are made aware of and educated to this conception. They are presented with a way of regarding themselves that otherwise they would most likely never be able to entertain.”21 This last observation on the educational role of the conception of justice leads us back to the weak constructionist reading I alluded to before. It highlights, once again, the fact that the sense of justice depends for its orientation on the content of a conception of justice. The publicly recognized conception of justice is transmitted through socialization and backed by the coercive apparatus of the state. By reference to the two principles of justice, the sense of justice defines its object and delimits its scope.22 This idea was first articulated in Rawls’s 1963 article and then reiterated in A Theory of Justice. The disposition to act justly is a moral psychological capacity that matures with age and depends on some basic emotions that are part of our human sociability. At the same time, it is also highly determined by the socialization one is subjected to as part of the reproductive efforts of the political community. This is the first theoretical element that I shall retain from the Rawlsian account of moral sentiments. It will later become clear how weak constructionism can be useful for understanding how the individual sense of justice works outside a liberal democratic culture. The second relevant aspect is the idea that negative feelings are expressions of the sense of justice. In experiencing wrongs—directed at oneself or at another—this moral power gets expressed in feelings of resentment and indignation, respectively. When one is the author of injustice, the experience of guilt is accompanied by the expectation of others’ resentment or indignation. These are moral feelings by virtue of the fact that, in explaining their experience of them, an individual has to appeal to a moral concept of justice and its associated principles, no matter what conception they identify with.23 Although Rawls does not elaborate too much on this, it seems correct to assume that the principles of justice will guide the experience of negative moral feelings and the actions they motivate.

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The question that emerges from this brief detour through Rawls’s work is, What do these two theoretical conclusions in ideal theory mean for the exercise of the sense of justice under partial compliance conditions? How far can ideal theory go in guiding political action in imperfectly just societies? In an attempt to set the limits of tolerance toward injustices within partially just societies, Rawls’s treatment of the sense of justice in nonideal theoretical terms focuses on the issues of civil disobedience, militant action, and conscientious refusal. Partial compliance theory covers those constitutional regimes based on a publicly recognized conception of justice, but which are imperfectly just.24 The situations that entitle citizens to engage in any of the aforementioned mechanisms of political resistance are violations of the two principles that he imports from ideal theory as standards of evaluation: “Viewing the theory of justice as a whole, the ideal part presents a conception of a just society that we are to achieve if we can. Existing institutions are to be judged in the light of this conception and held to be unjust to the extent that they depart from it without sufficient reason.”25 And, further, “We must ascertain how the ideal conception of justice applies, if indeed it applies at all, to cases where rather than having to make adjustments to natural limitations, we are confronted with injustice. The discussion of these problems belongs to the partial compliance part of nonideal theory. It includes, among other things, the theory of punishment and compensatory justice, just war and conscientious objection, civil disobedience and militant resistance.”26 What exactly does Rawls have to say about facing injustice? When engaging in forms of political resistance, such as civil disobedience or conscientious refusal, citizens appeal to the publicly recognized conception of justice and the sense of justice of the community in order to attract attention to an imbalance in the sharing of burdens within their scheme of cooperation. A just constitution publicly articulates the standards against which both the government’s policies and the citizens’ plans have to be measured. In practice, however, policies do depart from the publicly recognized conception of justice, resulting in massively skewed distributions of primary goods within society. The sense of justice of the citizen practicing civil disobedience manifests itself in legitimate feelings of resentment and indignation toward the normative inconsistency of governmental actions. This scenario fits

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well with what some have called transitional justice within consolidated democracies.27 The civil rights movement is what Rawls has in mind as the main test case. In order to live up to democratic standards, civil disobedience remains within the boundaries of fidelity to law: It should also be noted that civil disobedience is a political act not only in the sense that it is addressed to the majority that holds political power, but also because it is an act guided and justified by political principles, that is, by principles of justice which regulate the constitution and social institutions generally . . . one invokes the commonly shared conception of justice that underlies the political order. It is assumed that in a reasonably just democratic regime there is a public conception of justice by reference to which citizens regulate their political affairs and interpret the constitution.28

Within imperfectly just societies, the principles generally guide social interaction, though correctable deviations do occur. Rawls does consider the possibility of a more radical form of political resistance as well: militant action by individuals or groups who think the basic structure itself is unjust or blatantly departs from the principles of justice. Rawls only briefly introduces militant action because it falls outside the scope of partial compliance theory: the main aim of militant action is to make the public aware of the need for a change when the basic structure is guided by the wrong principles. Appeal to the citizens’ sense of justice, under these circumstances, is not an option since their sense of justice is erroneous or ineffective.29 Rawls claims that some situations justify recourse to militant action, but he does not provide an analysis of this form of political resistance. Nevertheless, on the basis of his views of the forms of political resistance limited by fidelity to law, we can try to develop what he would have had to say about this rather extreme case of political resistance. Here two scenarios can be distinguished. In the first scenario, there was once a publicly endorsed conception of justice, but partisan interest groups undermined it. Militant action is, in this case, a radical form of conscientious political resistance. Militants do not appeal to the community’s sense of justice because it is considered too weak and without effect—otherwise it would have prevented the slide away from the principles of justice. The choice of a more disruptive form of resistance depends on the severity of the

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injustice, the possibilities for social trust and mobilization, but also on the ideology moving the militant group. The once endorsed conception of justice provides the militant with a vocabulary with which she can formulate her claims and by reference to which she can design political alternatives. This scenario corresponds to the case of polities that have experienced constitutional democracy at some point in their histories, slid temporarily into authoritarianism, violence, or civil war, and have since tried to make a democratic comeback. Eastern Europe after the fall of the Berlin Wall is full of such examples. However, sometimes the democratic experience is too far away in the distant past to mobilize the public. The second scenario is the scenario Rawls is most vague about. One can easily identify societies through history in which the publicly endorsed conception of justice is not inclusive, i.e., it places some categories of individuals outside the scope of the community’s sense of justice. It is not that the citizens’ sense of justice is without effect, but, the militant would say, it is plainly erroneous. The principles of justice and their adjacent duties do not apply to certain groups who are excluded from political membership. In some historical cases there is exclusion from humanity, which then justifies the perpetration of atrocities against the members of these categories. This, of course, is an extreme case, yet not a fictitious one. The history of black slavery in the United States, the apartheid regime in South Africa, or the historical subordination of women qualify as examples of long-term oppression and discrimination with major consequences for the well-being of the subordinated groups. Among more recent episodes of exclusion from humanity, consider the genocide in Rwanda or the ethnic cleansing that occurred in the former Yugoslavia. In the second scenario there is no formerly endorsed just constitution to which one could appeal in order to publicly defend demands for reform. This is the case in which the militant—should she be given the opportunity for political expression by the ruling forces—tries to prepare the way for radical change. Should militants resist and challenge the inegalitarian principles at the basis of their society, principles they themselves have been coerced to abide by, what account can we give of their moral psychology? Given that they contest the very principles governing the basic structure, they cannot be thought to have successfully internalized the norms justifying their exclusion. Where does their sense of

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justice derive its content from when it manifests itself in resentment and indignation? What principles do the subordinated make reference to when they protest, or, once the change of regime has taken place, when they demand redress? As we shall see by the end of this chapter, there is a multitude of normative sources that the militant could make recourse to, ranging from imported political conceptions of justice to comprehensive visions of the goodavailable within the lifeworld of their societies. The question that still remains is whether, to what extent, and how these alternative normative sources and the emotionally charged actions they motivate are or can be made compatible with the theory of moral worth that democracy endorses.30 The two scenarios on militant action I tried to derive from Rawls’s minimal elaborations on nonideal theory come closest to the type of extraordinary political moments this book deals with, that is, the transition from oppression, civil war, or violence to democracy. Polities that had a previous experience with democracy will find themselves in the first scenario, while societies with no inclusive democratic tradition will find themselves in the second. Clearly this distinction is rather forced, as democratic modes and spaces appear even within essentially nondemocratic systems. Still, an appeal to a past democratic constitution makes an important practical difference in terms of how resistance movements and militants seek to legitimize their claims and catalyze political transformation. To conclude, Rawls’s theory can only partially account for the role of a violated sense of justice during transitions to constitutional democracy. For now, let us keep in mind the two essential theoretical elements that might help us advance in our project: the weak constructionism of the sense of justice and its negative manifestation in feelings of resentment and indignation. Before turning to an examination of how these elements can help explain the workings of the sense of justice in transition, the section that follows examines another influential account of this moral power: Judith Shklar’s vehement affirmation of the duty to act against injustice.

Civic Duties and Passive Injustice One tends to become aware of one’s sense of justice most dramatically when experiencing injustice, be it against oneself or another human

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being. This is why the negative expression of this moral sentiment through feelings of resentment and indignation has received more attention than its positive manifestation, i.e., the desire to act on principles of justice and associated feelings of respect toward oneself and others.31 Of all their characteristics, it is the importance of the regulative function that negative moral emotions can perform publicly that constitutes the focus of Shklar’s account: since she considers proper indignation to be a marker of good citizenship, she is alarmed by citizens’ failure to act against injustice within a constitutional democracy.32 There are several reasons why her treatment of the sense of justice is relevant for this project. First, Shklar successfully defends the importance of indignation and resentment for the reproduction of democratic values. These reactive attitudes need not be feared as dangerous for democracy. On the contrary, under certain conditions, they act as a major corrective force, pushing for a greater commitment to democratic values in practice. Unlike feelings of indifference and apathy, indignation and resentment can remind us of the perpetually imperfect nature of justice processes. When they fail to self-activate, impunity reigns—as we shall see in the analysis of our case studies. Second, despite the fact that her account of the sense of justice is limited to the political culture of constitutional democracy, as in Rawls’s case, there are some formal theoretical elements that enable us to make sense of other political contexts. As I show in this section, she shares with Rawls a weak constructivist perspective of moral emotions and the view that there is a strong relationship between the sense of justice and the emotional experiences of resentment and indignation. Moreover, in light of her somber—and sober—view of the functioning of the sense of justice within consolidated democracies, we may be in a better position to foresee the obstacles facing projects of emotional socialization within transitional contexts. The hope is that, on incorporating insights from Shklar’s work, we will be in a better position to envisage the role that institutions could play in stimulating the proper, balanced exercise of this politically essential disposition. Shklar defines injustice as the individual’s failure to act on her capacity to recognize injustices committed toward others. The central distinction for Shklar is that between injustice and misfortune. She criticizes people’s propensity to label injustices as misfortunes so that they can escape pangs of conscience when they do not feel compelled

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to act: “The difference between misfortune and injustice frequently involves our willingness and our capacity to act or not to act on behalf of the victims. To blame or to absolve, to help, mitigate and compensate or just to turn away” (1). Citizens ignore what their sense of injustice dictates whenever they refuse to . . . prevent acts of wrongdoing when they could and should do so .  .  . by passive injustice I (Shklar) do not mean our habitual indifference to the misery of others, but a far more limited and specifically civic failure to stop public and private acts of injustice. . . . As citizens we are passively unjust when we do not report crimes, when we look the other way when we do see cheating and minor thefts, when we tolerate political corruption, and when we silently accept laws that we regard as unjust, unwise or cruel. (5)

Shklar limits her conception of passive injustice to people in their political role as citizens of a constitutional democracy. The cognitive capacity to identify injustice linked to major institutional abuses needs to be supplemented by a desire to act on one’s assessments and ask for public accountability. This is not a matter of moral virtue, but rather of citizens’ positive duty to take victims seriously as a requirement of justice. Shklar argues against falling into the temptation to neglect or ignore rather than to protect. The failure to become appropriately indignant, she says, is typical of the citizens of a constitutional democracy who enjoy its benefits but do nothing to contribute to its preservation. Not acting on one’s sense of injustice represents a violation of a minimal democratic ethos and of the duties it ascribes to the members of a political community. In contrast with the citizens of oppressive regimes, citizens of democracies always enjoy more opportunities to act on their sense of injustice without fear of repercussions. She writes: “The possibility of such preventive civic activity is by far greater in a free society than in fear ridden and authoritarian ones, so I shall treat it as an aspect of the obligation of citizens of constitutional democracies only” (6). Shklar’s attention is directed exclusively toward citizens’ duties to act on their capacity to recognize the abuses against the different other. She demands that they become indignant at the injustices that

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befall other members of the community and, although she does not elaborate on this, she intimates that it is only through collective pressure that institutional redress can be achieved. Thus Shklar implicitly assumes that indignation is an emotional reaction related to one’s sense of injustice that requires cultivation in order to help redress inequalities and inequities. Given her focus on the political culture of a constitutional democracy and the individual citizen as the main unit of interest, Shklar’s account of the sense of injustice is only partially useful for our attempt to analyze dramatic democratic shifts. As in Rawls’s case, however, Shklar has the resources to account for instances of transitional justice within consolidated democracies: Most injustices occur continuously within the framework of an established polity with an operative system of law, in normal times. Often it is the people who are supposed to prevent injustice who, in their official capacity, commit the gravest acts of injustice, without much protest from the citizenry. . . . It is not sufficient to look only at the causes of affliction; the self-understanding of victims must also be taken into account by a full theory of injustice. Moreover such a theory should concern itself with both formal and informal victims, both those who are legally or conventionally recognized as such and those who do not show up in even the best of social inventories of injustices. (15, 36)

Where the rights repertoire and relevant institutional channels are already in place, instances such as those Shklar describes require the active pressure of citizens in order to realize an expansion of the scope or content of rights. Only thus can the normative consistency requirements of democracy be fulfilled. Citizens of mature democracies have been socialized within a public conception of justice that demands equal respect for all the members of the political community, but they sometimes fail to react to injustices, in spite of the existence of institutional avenues for action. Should citizens act on their sense of injustice, the existence of these avenues and the broader liberal political culture would provide the supporting background for successful rectification.

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The situation is different in transitional contexts given that the victims’ sense of injustice seldom needs stimulation and often motivates actions incompatible with democratic principles of justice.33 The severity of political oppression, the emotional effervescence of transitional moments, and the lack of favorable conditions for a careful attribution of responsibility have often tempted citizens of oppressive regimes to scapegoat or abuse victimizers for the purpose of satisfying their moral outrage. Yet, if democracy is the desired end result of the transition, emotionally motivated actions need to be filtered through rules of democratic appropriateness; that is to say, within contexts of dramatic political shifts, the challenge is more often not to stimulate but to orient the sense of justice, while acknowledging, nonetheless, the legitimacy of its evaluative verdict.34 This is a normative requirement in the sense that democratic equality demands both that victims be heard and that victimizers get treated fairly. Shklar’s account of the loss involved in failing to be indignant is, however, useful when we consider another sector of the public: onlookers and bystanders. Their failure to become indignant has, first, allowed abuses to continue unimpeded before the transition to democracy and, second, frequently contributed to a normalization of impunity after the change of regime. As the Argentine case will highlight, institutions need not only to valorize the signals of alarm negative emotions communicate when they are active but also to stimulate the development of a vigilant citizenry who will react emotionally and politically when witnessing violations against their co-citizens. In conclusion, Rawls and Shklar can provide us with some valuable theoretical insights into the structure, role, normative valence, and expression modalities of moral emotions within less than perfect democracies. In order to make sense of dramatic democratic shifts, however, we need to move beyond their accounts. Building on our excursus on the merits and limits of liberal views of the sense of justice, I now move on to a more in-depth exploration of the two theoretical lessons we have derived so far. In the next two sections I try to clarify what it means to say that politically relevant emotions— and the sense of justice in particular—are partially constructed by the norms that govern one’s social and political context. We shall then be in a position to discuss the type of emotional responses that

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a society committed to democratic equality would seek to cultivate within the citizenry.

A WEAK CONSTRUCTIONIST VIEW OF EMOTIONAL SOCIALIZATION The concern with the importance of emotions for social life is as old as philosophy itself. The debate has traditionally opposed cognitivists to those who emphasize the physiological dimension of emotional expression. In spite of ongoing discussions among cognitivists as to the exact role of judgment, thought, perception, or belief in the morphology of emotion, they agree that at least some complex emotions cannot be reduced to physiological reactions.35 Irrespective of its exact nature and relationship with the physiological changes, the evaluative component of emotional states is thought to confer meaning to human experiences. According to Robert Solomon, “An emotion is a judgment (or a set of judgments), something we do. An emotion is a (set of) judgment(s) which constitute our world, our surreality, and its ‘intentional objects.’ An emotion is a basic judgment about our Selves and our place in the world, the projection of the values and ideals, structures and mythologies, according to which we live and through which we experience our lives.”36 Cognitivists strongly disagree with those who portray emotions as purely irrational passions contaminating the higher parts of one’s soul. On the contrary, they claim, emotions serve as a guide to human interaction and can motivate moral behavior: “precisely the role of emotion is to provide the creature [ . . . ] with an orientation, or an attitude to the world. If belief maps the world, and desire targets it, emotion tints or colours it: it enlivens it or darkens it as the case may be.”37 However, “The aim of a cognitive theory of emotions is not to reduce the drama of emotion to cool, calm belief but to break down the insidious distinctions that render emotions stupid and degrading and eviscerate cognition.”38 I will not enter into the complex debates between the many varieties of cognitivism.39 I also do not aim to provide a complete theory of emotion. The focus of this book is on resentment and indignation as emotional reactions to the experience of injustice toward oneself or another. Reacting to injustice presupposes the evaluation of a situation

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or of an action as unjust, and this clearly points to the existence of an evaluative component. If we accept this, we can start discussing the issue of orienting emotion for the purpose of recuperating its worth and potential for democracy. The idea of orienting emotions reveals the connection between cognitivism and constructivism (or constructionism) in the theory of emotions. The important role of socialization—in terms of both its constitutive and regulative dimensions—constitutes the focus of the social constructivist theory of emotions. This theory allows for weak and strong versions, depending on the weight of the biological in the development of emotions. In what follows I shall briefly present the constructivist thesis in its weaker form. As I have suggested earlier in this chapter, strong constructivism denies any role to the biological, while weak constructivists portray human emotion as partially determined biologically, but also very malleable to socialization.40 The constructionist perspective on emotion is part of a larger theory of the social construction of human experience, the most famous representative of which is George Herbert Mead.41 The weak variant admits, however, that while a lot of human emotional attitudes depend on training in accordance with a social norm, other attitudes are natural: A social constructivist view of emotion does not envision a completely plastic organism, the proverbial blank slate on which experience can write unhindered. Homo sapiens is a biological species and millions of years of hominid evolution make some patterns of response easy to acquire and others difficult or almost impossible. But this being granted, it must also be recognized that the biological constraints on human behavior are rather loose.42

The naturalist thesis, according to which social emotions are merely regulated biological responses, is rejected as unnecessarily impoverishing our account of human experience.43 Emotions presuppose beliefs, judgments, and desires, which are partially the product of a social environment. The object of an emotion is made up of instigation, a target, and an objective; for example, in the case of resentment, the instigation is the experience of injustice toward oneself, the target is the agent who inflicted the wrong, and the objective is the

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correction of the wrong (punishment, compensation, etc.).44 The individual’s experience of a certain emotion is dependent on her having internalized the rules that are constitutive, regulative, and heuristic for that particular emotion.45 These rules reflect the social norms guiding interaction within a particular community. In the case of moral emotions, rules reflect the theory of moral worth that a society or a subgroup within that society embraces.46 Successful emotional socialization will result in the formation of context-appropriate emotions and their expression in culturally sensitive responses. With time, the individual learns to take responsibility for her emotional reactions in particular contexts and can be held accountable for her emotional performance. This is how the individual comes to assume a certain “transitory social role.”47 By internalizing the rules that define the role, she lives up to social expectations: “In order to perform a role adequately, an actor must not only know his own part, and the parts of others, but he must also understand how the various roles relate to the plot (and subplots) of the play. . . . In the case of social roles, the plot is the cultural system.”48 Since the capacity for moral judgment grounds moral emotions, moral rules give meaning to moral emotion. It is thus possible to subject emotional responses to critical appraisal based on how accurately the individual evaluated the situation eliciting the emotional response and how appropriately she translated this evaluation to her behavior. Appropriateness is a function of norm internalization and of the reasonableness of actions motivated by emotions.49 Thus, objectively, If emotions are cognition based, then this allows that they can be subjected to rational persuasion and criticism. For example, agents can be reasoned out of their anger just because the emotion is based on attitudes which can themselves be critically appraised in respect of whether they form an accurate or reasonable construal of the situation. If the agent misinterprets the situation as an insult, then we expect and consider him able to relinquish his anger. This point is relevant to constructionism because it allows that emotions can be endorsed or condemned with respect to the social appropriateness of the attitudes by which the emotion is generated, and that agents can be held responsible for the possession or absence of those emotion attitudes which are socially required for a situation.50

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and subjectively, It is important to stress continually the difference between the emotion itself as a judgment and our reflective judgments about our emotions (judgments about our judgments). My being angry is my making a judgment; my recognition that I am angry is a reflective judgment about my anger (as is my judgment that my anger is justified, that, on reflection, the other person deserves [or doesn’t deserve] my wrath, etc.).51

Given the malleability of emotion in relation to reflective judgment, it is clear that emotions can—and are meant to—fulfill important functions for the reproduction of the collective,52 both in terms of limiting undesirable behavior and encouraging the wider endorsement of societal values: “every emotion establishes a framework within which we commit ourselves—or refuse to commit ourselves—to our world and to other people. Every emotion lays down a set of standards, to which the world, other people, and most importantly, our Selves are expected to comply.”53 To the extent that educating the understanding and the activity that are part of emotion is possible, educating emotion by providing individuals with a sense of emotional appropriateness is also possible. But how does socialization proceed? How does an individual grow to inhabit the appropriate temporary roles that emotions are? How are emotional rules internalized in order to allow for the proper functioning of the individual within his group? The core process at the basis of socialization is the internalization of external—social, cultural, political—norms.54 Social psychologists divide the sources of motivation into two categories, intrinsic and extrinsic. Intrinsic motivation has its source in the individual and is thought to guide the most autonomous activities, those undertaken purely for the sake of interest and not because of the consequences that ensue from them. By contrast, extrinsic motivation has its sources in external norms of behavior; the individual acts only for the sake of sanctions, be they rewards or penalties. When successful, internalization of external norms ensures psychological integrity and social cohesion: Internalization is an active, natural process in which individuals attempt to transform socially sanctioned mores or requests into personally

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endorsed values and self regulations. . . . When the internalization process functions optimally, people will identify with the importance of social regulation, assimilate them into their integrated sense of the self, and thus fully accept them as their own. In this way they will become integrated intrapsychically but also socially.55

We now need to be a bit more precise about the types of rules that successfully socialized persons need to appropriate. The rules are classified by the constructivist as constitutive, regulative, and heuristic.56 Constitutive rules cover the appropriateness of the emotion’s object; e.g., one cannot be angry at the moon. Regulative rules determine how emotions should be experienced and expressed internally and, if the conditions are favorable, externally, i.e., behaviorally.57 Regulative rules cover the type and intensity of behavioral responses that express the emotion as well as the time span and progression of emotional events. Last but not least, heuristic rules belong to the art of finely tuning one’s emotional manifestations and constitute the object of adult emotional development. Problems of emotional expression can be explained by reference to violations of these rules;58 however, having rules does not mean that they provide precise formulae for emotional experience. Judgment and personal history are involved in the evaluation of the situation provoking the emotional reaction, the identification of the appropriate target, and the selection of the particular response. Building on Aristotle, but allowing for variance within and among communities, constructivists believe that, throughout their life, the individual learns “to feel the right emotion, on the right occasion, toward the right object and in the right degree.”59 In what follows I use the analytical tools provided by the social constructivist in order to give an account of one’s sense of justice and its negative expression in feelings of moral resentment and indignation. The hope is that, by the end of next section, we will have understood what it means to feel resentful inside and outside one’s political community in a way that sheds light on instances of democratic transition. My general claim is that, while democracy can recognize the value of negative emotions, further work needs to be done to stimulate the endorsement of democratic rules of emotional expression. In order for the social and political benefits of resentment to become apparent, a balance between violent outbursts of anger and apathy needs to be found.

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CONSTITUTING AND REGULATING RESENTMENT AND INDIGNATION I conceptualize the sense of justice as a complex moral disposition to act on the principles of justice defining the conception of human worth, which sets the general parameters for a community’s socialization projects. It is an enduring sentiment, characterized by relative stability. By contrast, feelings are temporary mental states that sometimes express a long-term disposition.60 Resentment and indignation are the negative feelings in which the sense of justice finds expression. As a moral sentiment, the sense of justice presupposes the centrality of the self and its relationship to the world, and it has two components: a cognitive/evaluative component and a motivational/action-orienting one.61 This moral disposition provides the individual with the capacity to recognize breaches of her moral expectations, as defined by the theory of moral worth into which she has been socialized, and gets expressed in feelings of resentment and indignation.62 The volitional dimension is linked to the development of a desire to act on these evaluative feelings in the form of moral sanctioning and punishment.63 Resentment and indignation are the negative emotional responses triggered by offense to the sense of justice. As such, they belong to that class of emotions thought to have a universal object: the particular injustices that give rise to resentful responses are instances of injustice as a universal category for a particular community: Such emotions seem to abstract not only from the particularity of their object but also from that of their subject: it is only accidentally I who am feeling this indignation—the call to indignation might have been addressed to and taken up by another. The emotion is, as it were, impersonal. Learning its proper exercise involves acquiring conceptions of justice, appropriateness, and right which propose themselves as universally valid. .  .  . One might say, therefore, that the education of these universalized emotions is an essential part of moral development.64

If we continue to work along constructionist lines, wrongs are deviations from the rules that hold together the fabric of the individual’s relevant community. Through the socialization of moral emotions,

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such wrongs are meant to be identified and met with disapproval, given that they are based on correct evaluations of the facts. Resentment and indignation in response to a wrong, like all universal emotions, are highly educable through the power of experience and exemplarity: It is not difficult to see how one might educate such “universalized” feelings. Having shown a man what is contemptible in one instance of cowardice, and having brought him to feel contempt towards it, one will necessarily have brought him to feel contempt on like occasions. In educating such emotions one is educating a man’s values, and providing him with a sense of what is appropriate not just here and now but universally.65

The sense of justice is of extreme political importance. Not all instances that arouse the sense of justice are politically relevant; however, the frustration of those moral expectations related to one’s status as a member of the political community triggers, most of the time, negative emotional reactions. Public institutions such as the education system and criminal law socialize citizens toward the development of a basic set of attitudes that ensures the maintenance and reproduction of the normative, institutional, and cultural community. It is essential for the proper functioning of institutions that the majority of individuals affected by them have internalized the constitutive, regulative, and heuristic rules limiting behavioral expressions of emotions. The training of both the cognitive and volitional aspects of politically relevant emotions enables the individual to function as a full member of the political community and to identify those policy areas where correction of injustices is required. What counts as injustice will vary from one community to another. Observing constitutive rules of resentment or indignation would mean reacting resentfully or indignantly only to those circumstances that are seen as unjust according to the moral codes of the relevant community. Regulative rules would prescribe what actions can be entertained in the name of these attitudes, for how long, and with what intensity. Heuristic norms, for their part, would point to the refined ways in which one could express the emotion while at the same time staying true to its underlying social norm. In a constitutional democracy, legitimate resentment and indignation are tied to correctly identified violations

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of the expectation to be treated as an equal member of the political community—this is what could generically be called the democratic appropriateness of politically relevant emotions. The corollary of this is that losing the grip over political power and the repressive apparatus of the state does not constitute an appropriate instigation for resentment and indignation. Deposed victimizers and their supporters experience legitimate resentment and indignation only if they are treated with less than equal respect during transitional justice processes. The idea of “democratic appropriateness” is more encompassing than what one could call “emotional restraint.”66 The idea of emotional restraint points to the ways in which a resentful or indignant person could moderate the intensity of her emotion and reconsider the action she wants to perform as expressive of that emotion. By democratic appropriateness of emotion I mean to also cover the target and instigation of that emotion, not just its intensity and action dimensions. In other words, I seek to cover the constitutive, regulative, and heuristic rules of emotional socialization already discussed. For example, democratically appropriate resentment targets real injustices committed against myself by correctly identified responsible agents—be they individual or structural agents—and manifested in actions that do not violate the rights of the perpetrator. In order to get a better idea of the theoretical conclusions that have so far emerged, let me introduce a schematic representation of the dimensions along which I have been theorizing the sense of justice, whatever its principled content. To recapitulate, the relevant group’s theory of moral worth gives the sense of justice its guiding principles. It stipulates who the subjects of justice are, i.e., who is owed duties of justice and who is outside the scope of justice. Depending on the position the individual objectively occupies on the scale of human worth, the group entitles her to feel different moral emotions. For example, it would be appropriate for any woman living in twenty-first-century Canada to be morally outraged were she to be denied the right to property. In contrast, indignant claims of exclusion by the suffragettes were dismissed or met with ridicule at the time of their struggle. An individual’s system of expectations and emotional responses is defined by her place in the social ranking. Socialization stabilizes her expectations over time and experiences within one’s social environment reinforce one’s sense of the self and one’s position in relation to others.

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1. Positively (the sense of justice)

A. Self to Self

B. Self to Others

Attachment to the principles of justice one considers authoritative translates into a sense of the self and correlative expectations of predictable treatment by others. One develops a sense of entitlement/ desert as a subject of justice, whatever justice requires. This usually gets expressed in a sense of self-respect and even pride.

Attachment to the principles of justice one considers authoritative translates into a sense of others as subjects of justice and of correlative duties. Who counts as belonging to the realm of the subjects of justice and the variety of duties owed to them is defined by the recognized theory of moral worth. This is usually manifested in an attitude of respect and may be expressed through feelings of solidarity, community, trust, civic friendship, etc.

2. Negatively A capacity to recognize injustice to (the sense the self in the form of the frustration of injustice) of moral expectations that are legitimated by the principles of justice one considers authoritative. This is usually manifested in feelings of resentment.

A capacity to recognize injustice to others as the violation of their expectations, which is legitimated by the principles of justice one considers authoritative. This capacity is usually manifested in feelings of indignation.

Let us now turn to my schematic representation of the multiple dimensions of the sense of justice, in terms of the individual’s relationship to herself and to others, and its possible expression in positive and negative moral emotions. Let me go over the four positions in the table and clarify what a formal account of the sense of justice can contribute to our understanding of social, political, and emotional phenomena. The table represents the perspectives of the individual on herself and others as subjects of justice in relation to both positive and negative experiences.67 Once I have elaborated on the four cells, I turn to discussing the potential normative sources individuals can appeal to in formulating rectificatory claims within transitional justice contexts. Cell A1 corresponds to the individual’s sense of the self in relation to the position she has been ascribed by the theory of human worth she has successfully internalized. Depending on the position in which

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the individual sees herself, she develops a set of expectations as to how she will be treated by others. Provided her expectations are stable and generally fulfilled, her sense of self-respect will remain stable over time. In the case of a nonegalitarian theory of human worth, even the individuals at the bottom of the hierarchy can develop such a sense of self-respect—and sometimes pride—given that what might otherwise be considered oppressive treatment is predictable and does not push the biological limits of socialization. Unequal treatment could be accepted as just deserts by a person socialized to believe that justice requires that she be treated unequally.68 Societies based on inequality have their own conception of justice, which shapes the individual’s patterns of expectations. A person may learn to believe she deserves the type of attitudes others have toward her—the historical case of women’s oppression being a case in point. The development of pride and self-respect is not necessarily precluded by unequal treatment. As long as there is agreement between the rules one has internalized and the behavior of others—be they social actors or institutions—the stability of one’s sense of the self and of the related social and political institutions is ensured. Cell B1 covers the type of attitudes an individual forms toward others according to the theory of moral worth that colors the world for her. She develops dispositions to respect others and a desire to consistently act on the principles of justice and the duties they prescribe; however, different attitudes are deemed appropriate depending on others’ relative position in the scale of moral value. In certain historical contexts, some fall outside the category covered by the sense of justice and hence are owed no duty at all. The scope of the sense of justice along this dimension is limited by one’s conception of human worth and the boundaries of the relevant group one is a member of. Any collective that relegates human beings to the subhuman realm by virtue of particular features denies these individuals coverage under their sense of justice. Cell A2 refers to cases in which the individual experiences threats to her sense of the self through violation or frustration of her expectations regarding the self as a subject of justice. If the individual has successfully internalized the norms of a particular theory of human worth, she will feel resentment whenever her moral expectations regarding how she is to be treated are frustrated at the hands of other individuals or state institutions. Resentment arises in response to attacks on one’s .

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sense of the self, as perceived in the context of the particular theory of human value to which she subscribes. Based on the assessment of a situation as unjust, the individual forms desires to morally sanction the perpetrator and correct the wrong. The injustice the individual experienced threatened her sense of self; through punishment, she seeks to reaffirm its value. Cell B2 corresponds to the feelings an individual forms as a third party when she witnesses moral wrongs committed against another human being. Should the victim be treated in a way that does not correspond to her moral rank, a third party might experience feelings of moral outrage when witnessing a transgression. This is the feeling Shklar wishes had a stronger motivational force for democrats and that, in transitional moments, can push the struggle for redress. This formal account of the sense of justice helps us make sense of the relationship between the experience of injustice and feelings of resentment and indignation. No matter what the content of the conception of justice that guides the individual happens to be, her sense of justice will take one of the four positions outlined in the table. Whether the individual’s world is colored by an egalitarian or inegalitarian conception of human worth, she is still liable to experience the feelings described in the table. The formation of related attitudes will depend on evaluation of situations in view of the principles that guide the individual’s judgment. Before moving on to an account of the sources of the sense of justice, it is important to clarify that the injustices that give rise to resentment and indignation need not be ones that can be easily identified as discrete wrongs, attributable to distinct agents.69 Feminist theorists have rightly criticized certain rigid perspectives on anger, for they believe such accounts miss angers that could appear as “unreasonable” precisely because they are not clearly related to a particular wrong and a specific agent. Such emotions constitute a response to the experience of systemic oppression and disadvantage.70 By linking the experience of resentment and indignation to breaches of expectations and by taking on only the formal dimension of liberal accounts of the sense of justice, this book’s project can accommodate the kind of emotions that fall off the radar of restrictive models of negative emotions. By including both identifiable wrongs against persons and the experience of structural oppression

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under the umbrella of “breach of expectations/denial of equal status” the model introduced here is sufficiently encompassing to alleviate such worries. Public expressions of resentment and indignation at structural problems should play a corrective role in the life of any political community. Within transitional contexts, resentments and indignation can target both discrete human rights violations and systemic problems such as living in fear, being deprived of meaningful freedoms, basic goods, or life options, problems for which it would be difficult to blame discrete individuals. In the analysis of the legal cases, I will zoom in on legally actionable wrongs, which tend to be against individual perpetrators. In this sense law is a blunt instrument whose work needs to be supplemented by a plethora of other institutional mechanisms that could remedy the structural dimensions of a painful past.71 This section has provided an account of the sense of justice, its morphology, and socialization that does not link it to the favorable conditions of a stable constitutional democracy. Next I shall examine potential alternative normative sources that victims and witnesses of injustice can embrace during and after the fall of a repressive regime.

THE SOURCES OF THE SENSE OF JUSTICE Emotional expressions that usually demand an outlet in transitional moments can easily be interpreted as results of a tension between the individual’s expectations—as defined by her conception of justice, comprehensive doctrine, or alternative, borrowed political conception that she finds authoritative—and the treatment she gets from institutions and co-citizens. Let us examine some alternative scenarios. Should the publicly recognized conception of justice see the individual as a subject of rights and a citizen of the political community, while treatment by state officials or rival groups deny her this status, one is likely to experience injustice emotionally. For example, many authoritarian regimes have public, written constitutions that in practice have no protective force. The tension between what is publicly declared to be the case and the actual treatment of citizens by state agents generates tension within the individual who, under such circumstances, can only be motivated to abide extrinsically, through

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rewards or punishments. Valid, yet unobserved, constitutions can serve as normative sources for the individual’s expression of his evaluative emotions. A variant of this scenario is when a state’s past experience with democratic institutions acts as an important referent for the individual’s sense of justice. Exposure to an alternative political conception—national or international—that resonates with citizens’ needs and interests can also act as a catalyst for resistance and change. The language of universal liberal rights was widely used to contest the socialist regimes in the former Eastern Bloc. Sometimes this borrowed conception is radically transformed in the process of its adaptation for local reform purposes. The comprehensive visions of the good that citizens endorse can also provide them with the appropriate normative language with which to communicate reactive attitudes. Religious, philosophical, or traditional moral codes are obvious examples. The civil rights movement in the United States constitutes a relevant illustration as a justice project whose agents relied on a widely endorsed set of religious beliefs to achieve its political goals. There are also contexts where no alternative normative language is readily available or where such a language is not widely shared by the oppressed. In such cases, victims tend to formulate their claims in negative terms. If one looks at public protests during or in the immediate aftermath of transition in Latin America or Eastern Europe, but also during the Arab Spring, demands were often made nonconstructively: “No more Communism,” “Down with the dictator,” “Keep the military away.” Last but no least, where basic human needs remain unsatisfied, resentment and indignation emerge as responses to radical violence and deprivation.72 Tragically enough, in the most extreme cases of oppression, where the individual is brought on the verge of annihilation and loses hope, the capacity for resentment can be lost. In such cases, victims begin to consider others’ attitudes toward them as deserved and not as a reason for resentful feelings. This is often the case for women’s subordination, and racial or ethnic historical oppression, such as that of African Americans in the United States and of the indigenous peoples of the Americas and Oceania.73 With the exception of these extreme cases, the language of protest varies from one polity to another, from one group to another. The

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sense of justice finds its content in different contextual sources, which individuals have successfully internalized and see as authoritative: religion, moral codes, a failed experience with democracy preceding the unjust regime, a reactively imagined future, or, quite often, a borrowed political language.74 In the case of a transition to democracy, public claims to justice by victims and their families, no matter what language they are expressed in, refer to harms that can easily be traced back to injustices—individual or structural—that democracies need to correct and prevent in the future. Once violence stops, fear diminishes and citizens can affirm their need to form stable expectations toward one another and toward the governing institutions. Some of these expectations take the form of legitimate demands for justice, but, given the emotional vehemence of these demands, there is always the potential for violence against real or imagined victimizers. The first difficulty institutions have to face is how to deal with the powerful feelings of victims and resisters in a way that does not scapegoat anyone for the sake of satisfying moral anger. It is normatively imperative that democracies recognize the victims’ legitimate emotional claims while at the same time preventing victimizers from slipping out of the protective scope of a democratic sense of justice. In other words, legitimate resentment and indignation must correctly identify abusers and victimizers and must be expressed in ways that do not deny them equal moral status. The last issue this chapter will engage with concerns the compatibility between the principles giving content to moral outrage and democratic values of equal respect for all under the law. What type of situations authorize resentment and indignation according to the egalitarian theory of moral worth of a democracy? How must one act on these emotions in keeping with the polity’s newly proclaimed commitment to democratic values? Within a society regulated by an egalitarian theory of moral worth, any act that denies equal status to an individual entitles her to resentment, and third parties to indignation. Her moral and political expectations have been betrayed, and she desires a reaffirmation of her worth. This reaffirmation is, however, subject to limitations by constitutive and regulative rules; negative emotion must target real victimizers, and its expression cannot take forms that would demean the victimizer. Private, extralegal justice would be the most blatant form

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that a violation of equal respect could take. The task of ensuring compliance with both constitutive and regulative rules within societies that embrace moral egalitarianism belongs to public institutions. Among these, public education and a criminal law system entrenching the principles of the rule of law are the most obvious candidates. The goal is to recognize the legitimacy of the victims’ evaluative emotions, at the same time channeling, filtering, and orienting them in conformity with the demands of equal concern for persons. But what does this mean for the relationship between the moral resentment and indignation that accompany transitional justice claims, on the one hand, and the moral egalitarianism of democracy, on the other? At this point it seems safe to conclude that the moral injuries oppressive regimes inflict on their victims would count as legitimate objects of resentment and indignation from a democratic point of view, no matter what language rectificatory claims are expressed in. Crimes ranging from expropriation to starvation, kidnapping, imprisonment, forced labor, torture, mass killings, and ultimately genocide can all be reformulated in the language of denying equal respect that democracies recognize. Constitutive rules of emotion are observed when people exhibit resentment toward their true victimizers. All the crimes listed earlier constitute proper instigation for resentment and indignation; however, due to contextual factors, it is difficult to identify the targets of moral disapproval, i.e. the perpetrators, and it is hard to establish responsibility. Attribution of guilt should be carried out with caution in order to avoid scapegoatism.75 In addition, once the target has been correctly identified, the regulative rules of morally egalitarian societies must ensure no abuses are committed when those who are experiencing resentment and indignation try to achieve their objective, namely, punishing those responsible for the injuries. Victims are proper objects of concern for democracy; nevertheless, in order to live up to democratic commitments, victims should not give victimizers proper grounds for resentment by knocking them off the scale of moral worth: respecting the equal worth of victimizers sets the parameters of emotional appropriateness by resentful and indignant political agents. This prescription is valid not only for the institution of punishment, but for all transitional justice mechanisms a society might choose to institutionalize in order to engage with its painful past. Equal respect for

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the victimizers should be affirmed whether in the context of a TRC, a gacaca circle, a hybrid or international court, or in the delivery of compensation or restitution. Before concluding this chapter it must emphasized, once again, that victimizers’ resentment and indignation at having lost control over the state apparatus and being brought to justice do not count as democratically appropriate negative emotions. As we shall see in the analysis of the case studies that follow, the pedagogical power of law needs to be directed toward survivors and families of victims, but also toward victimizers and their supporters within the public. By constructively and dialogically engaging with illegitimately resentful and indignant citizens, courts can hope to woo their support and thus broaden the support for democracy. While there is no guarantee for success, multiple categories of emotionally mobilized publics require careful institutional attention. Having thus substantiated the grounds for believing in the normative weight and the educability of emotion presented in chapter 1, it is now time to turn to the second question new elites have to answer: How exactly can we give legitimate feelings of resentment and indignation their due without simultaneously undermining the normative basis of democracy? How can we imaginatively engage mobilized emotions—both legitimate and illegitimate—to stimulate the development of a disposition to consistently act in accordance with the values on which constitutional democracy is based? In what follows, I look into the ways in which the judiciary should dispense transitional justice with a view toward nurturing a democratic emotional culture. Chapter 3 will supplement the existing literature by providing an additional argument about how judges should—and can, under certain circumstances—contribute to the development of democratic dispositions in their capacity to review legislation. Insights from legal theory and the literature on reflective judgment will illuminate the ways in which courts should formulate decisions to increase the support base for democratic institutions. In chapter 4 I will explore penal proceedings and the emotional impact they should aim to have on the parties directly involved in this process and on society at large. This is not to argue that courts are the only, or the best, institutions for the task of engaging negative emotions. Because of their national reach, they can, however, have an important impact on the emotional

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circumstances of justice in transition. Case studies will give substance to the theoretical arguments advanced in chapters 3 and 4. They will showcase how law might engage public expressions of resentment and indignation in a way that makes them compatible with democratic principles and aspirations.

3

Ena b l in g E m o t i o n a l R e spons ibil it y I Judicial Review of Transitional Justice Legislation The point of law is to make the passions more coherent, more consistent, more articulate, more perspicacious, more reasonable, more subject to scrutiny, more scrutinized. —Robert C. Solomon, “Justice v. Vengeance”

The previous two chapters have dealt with the issue of justifying transitional justice projects for polities aspiring to democratize. We have seen that, from the point of view of a constitutional democracy, there are solid prudential implications attached to a fair engagement with the past. Our account of the socialization of the sense of justice has paved the way for the next step in the attempt to develop a political theory of transitional justice. This chapter addresses the second programmatic question of this book, that of distributing corrective measures. Who should distribute transitional justice? And how should transitional justice be distributed in order to promote the development of a democratic emotional culture, supportive of democratic institutions? This chapter and the next will examine the ways in which the judiciary could dispense transitional justice so as to further democracy as a normative, institutional, and cultural order: by recognizing the legitimacy of negative emotions and ensuring their “fit” with democratic goals. It is necessary to clarify at this point that I will not provide an argument as to why “the least dangerous branch” of government is in a better position to engage with an oppressive past.1 As we saw in chapter 1, there is a growing convergence in the field of transitional justice on the idea of a division of labor between different institutional mechanisms. Judges are

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not the only actors who can engage the legacies of oppression, but they play quite an important part in this process. Any account of democratization that does not acknowledge contributions by unelected institutions with national reach is incomplete and unrealistic. Chapter 3 supplements the existing literature by providing an additional argument about how judges should aim to contribute to democratization through their capacity to review legislation. Given that the focus of this book is on the public’s negative emotions, I shall concentrate my analysis on a review of transitional justice bills. The chapter does not seek to offer a defense of the institution of judicial review, but only to show how it can make an important contribution to a concerted effort to democratize. I advance three claims. First, maintaining the integrity of democratic principles requires that judges reviewing transitional justice legislation recognize legitimate negative emotions. This means that courts should decide in ways that facilitate the opening of institutional spaces for expressing alternative visions of the past and for discussing competing claims to victimhood, thereby affirming equal concern for citizens and contributing to the normative reproduction of constitutional democracy. Sanctioning bills meant to induce silence and amnesia or bills that would unleash abusive administrative purges and trials cannot be justified. Second, decisions that reaffirm egalitarian principles should also communicate the limits that democracy places on emotional expression. The goal is to avoid the abuse of victimizers for the sake of satisfying victims’ and society’s thirst for justice. The judiciary must safeguard everyone’s rights—not just the victims’. Nonetheless, a distinction must be made between legitimate emotional dissatisfaction with the state’s failure to provide redress and emotional dissatisfaction at losing the protection of unfair and unconstitutional amnesty laws. To the extent that courts consistently act with equal concern and respect toward all individuals, to the extent that they engage constructively with all parties’ emotions, they exemplify what constitutional democracy demands of its citizens. Third, a principled engagement with the past along these lines might have a didactic effect provided that the judiciary manage to formulate their decisions in ways that resonate with their audience and inspire them to internalize democratic rules of emotional expression. It must be acknowledged that there is no guarantee that such an effect would ensue. Since democratic socialization can only result

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from a multilateral and lengthy effort, it would be difficult to isolate and measure the pedagogic impact that judicial review of transitional justice bills might have on its own. Humility about the contingency of such didactical efforts should not, however, prevent us from exploring the objectives that courts should pursue and from outlining a theory of judicial adjudication that can take on the emotional challenge. This chapter argues that courts should strive for exemplary decisions that provide victims and victimizers, as well as the wider publics, with a justification and explanation of what a commitment to constitutional democracy requires of both institutions and citizens in the wake of political violence and abuse. Multiple voices must be heard in order to make sure that legitimate emotions are recognized and illegitimate ones discouraged. Such decisions can simultaneously acknowledge the legitimacy of resentment and indignation and point to the ways in which they can be expressed in a society embracing an egalitarian theory of human worth. Whether or not their message will be taken up depends on a variety of factors that will be explored in the analysis of the case studies. The question that naturally emerges at this point is the following: how, then, are courts to adjudicate? What kind of decisions display a commitment to the principle of equal respect and concern for all and communicate democratic rules of public sentimental expression? This chapter proposes a fresh way of thinking about the mechanisms at play when judges reach and communicate transitional justice decisions. In addition, the addressees’ perspective on the decision will be dealt with from a theoretical point of view. Building on Ronald Dworkin’s account of judicial interpretation and adding insights from the literature on reflective judgment, this chapter will illuminate the ways in which judges should decide in support of constitutional democracy. I begin by reviewing the arguments that have been put forth with regard to the role judicial review should play in polities making the transition to democracy (“Judicial Review and the Shaping of a Democratic Emotional Culture”). By drawing attention to the emotional aspect of democratic culture, I add one more dimension to the already complex set of expectations linked to this institution. This theoretical move opens up the space for a more complex theory of adjudication for democratic transitions. In order to formulate such a theory, I will use Ronald Dworkin’s theory of “law as integrity” as

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a starting point (“The Limits of ‘Law as Integrity’”). The reason for choosing Dworkin lies with his simultaneously dynamic and temporally sensitive understanding of legal interpretation. However, while Dworkin’s analysis does justice to the way in which judges work within a legal tradition and at the same time transform it, his perspective suffers from two shortcomings. The first limitation is the lack of attention to the sociopolitical circumstances of judgment in general, and to the emotional dimension in particular. Dworkin’s account is insulated from the context of adjudication. Because he discusses the integrity of the legal system in isolation, he misses important contextual elements that define the role of the judiciary. Attention to context needs to inform reflections about the political role of adjudication not only within transitional moments but at all moments within the life of a liberal democratic community. In what follows, I try to add complexity to Dworkin’s model and outline what the integrity of liberal democratic principles requires from judges with regard to the emotional circumstances of transitional justice. The second shortcoming in Dworkin’s analysis is related to his neglect of the relationship between the makers and the addressees of judicial decisions. I argue that decisions need to legitimize the desire for vindication that victims and their families bring with them to court, but, at the same time, communicate the constraints that a society’s very commitment to constitutional democracy places on the satisfaction of that desire. Moreover, victimizers’ and their supporters’ expression of affective responses to the loss of political power constitute another opportunity for exemplifying democratic values in practice. An account of how judges should address their audience persuasively and inspiringly is necessary for theorizing the judiciary’s contribution to political socialization. Alessandro Ferrara’s notion of exemplary, oriented, reflective judgment will be used to supplement Dworkin’s account with a more robust treatment of judgment and to disclose the mechanisms at play in judges’ decision making as well as in the reception of those decisions by the court’s resentful and indignant addressees.2 Thus, by adding a socio-emotional dimension to the circumstances of justice and a theoretically richer account of how judgment is both made and received, our account of adjudication will be better equipped to make sense of the more subtle ways in which the review of bills should help create and reproduce a democratic regime (“Judicial Review and the Exemplarity of

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Oriented Reflective Judgment”). Two case studies—South Africa and Argentina—will then illustrate the theoretical argument this chapter proposes (“Reflective Judgment in Context I: Judicial Review of Transitional Justice Bills”).

JUDICIAL REVIEW AND THE SHAPING OF A DEMOCRATIC EMOTIONAL CULTURE Most of the research done on the relationship between democracy and judicial review has been motivated by a fascination with the American constitutional experience. The Supreme Court of the United States is arguably a paragon of judicial power, enjoying immense media visibility. The mirage of foreign blueprints as well as a disenchantment with the vagaries and unpredictability of politics have made societies exiting authoritarianism and civil violence quite fond of the judiciary in general and of courts with constitutional jurisdiction in particular. Numerous countries that made the transition to liberal democracy in the twentieth century have opted for institutional setups that include a strong court of constitutional review, some following the American, others the Kelsenian, model.3 The fear of political processes—which historically led to the creation of permanently losing parties and enabled the hijacking of all state power by a minority—often made citizens more trustful of courts. A clearly romanticized image of the judiciary as an impartial forum of reason often dominated public perceptions of the institution, while the enormous body of work—both academic and fictional—on the U.S. Supreme Court did nothing but fuel the public’s fascination with court-administered limits on capricious legislative politics.4 Jeremy Waldron, nicely explains the appeal of judicial review: A large part of the authority, the legitimacy—if you like, the simple appeal—of a legal system is that we may regard ourselves as subject to government by laws, not by men. And the danger of focusing on legislation is that, as a source of law, it is all too human, all too associated with explicit, datable decisions by identifiable men and women that we are subject to these rules rather than those . . . The processes by which courts reach their decisions are supposed to be special and

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distinctive, not directly political, but expressive of some underlying spirit of legality. . . . Everyone knows that argument in Congress or in Parliament is explicitly and unabashedly political.5

In spite of divisive debate over many aspects of the new institutional design to be adopted, new democracies generally agree about one thing: never again will citizens put up with state-sponsored harm. Never again will they live in fear. Never again will they be at the mercy of arbitrary and overwhelming power. And, right or wrong, an impartial judiciary is thought to be an obvious solution when it comes to insulating citizens from the potentially abusive reach of the state. Most societies coming out of regimes famous for denying the meaningful exercise of rights are enamored with the idea of having legally protected claims against the state and other members of the political community. Rights talk can certainly impoverish the public discourse and weaken the sense of the community if it leads to the creation of a litigation-centered culture,6 but recently enfranchised populations celebrate rights and think a relapse into the past could only be prevented through the entrenchment of a constitution. Irrespective of philosophical quibbles over their universality, in practice rights tend to have a powerful expressive function, which provides rights bearers with a sense of self-respect, a sense that can balance an individual’s negative feelings.7 When discussing the relationship between democratization and judicial review, constitutional engineers have identified a variety of functions a court of constitutional jurisdiction could perform within transitional contexts. An independent panel of judges controlling the constitutionality of bills and acts by the political branches may prevent a slide back into unaccountability and oppression.8 Judicial review enthusiasts have linked the establishment of a court of constitutional jurisdiction to the protection of human rights and of inclusive deliberative processes,9 but also, indirectly, to economic prosperity.10 Such a court is also thought to perform a democratic representational function when it takes the side of the least powerful and pushes majorities to comply with its rulings.11 Moral consciousness could be awakened through an institutional shaping of memory and remembrance processes.12 In addition, focusing public attention on salient issues could encourage the development of a sense of civic responsibility and help

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crystallize the party system.13 Courts should embrace transparency with a view to stimulating deliberation and meaning creation.14 What is more, a constitution and the judiciary interpreting it should contribute to a democratic identity-building project. Through all these different functions, observers claim, judges would serve the reproduction of constitutional democracy even better than elected parliaments.15 This chapter does not aim to justify the institution of judicial review. Judicial review is the institutional mechanism that constitutional democracies most frequently employ in order to reconcile the foundational tension between the commitment to human rights and democratic decision making. It is not the only—or the best—mechanism for accomplishing this complex task; however, given the enthusiasm and regularity with which it is embraced by transitional societies, a theory of transitional justice needs to sketch an account of adjudication that sets the goals for—and constraints on—this institution. In what follows, I propose an additional element of the multifaceted contribution judicial review can make to democratization. My claim is that, by handing down exemplary decisions in transitional justice– related cases—and not only—courts can help the normative, institutional, and cultural reproduction of constitutional democracy. The main aim of this chapter is to draw attention to the emotional dimension of the circumstances of politics and adjudication. Democrats are not socialized overnight and in a vacuum; institutions need to simultaneously recognize suffering and communicate the limits that democratic norms set on redress claims. Not all kinds of politically relevant forms of emotional expression are compatible with democracy. Political socialization—which encompasses the socialization of politically relevant emotions—takes place over time and depends on sustained institutional orchestration. When it comes to young democracies, one might say that the sense of justice has only shown its negative, anti-oppression face— legitimate resentment and indignation have contributed to a push for political change or have emerged virulently in the aftermath of conflict. A disposition of “watchfulness over rights” needs to be excavated from underneath layers and layers of resentment and indignation directed toward former oppressors. Former oppressors themselves are often resentful for their loss of power and the prospects of being punished. Under such circumstances, a polity cannot risk relying on the

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shaky barriers of moral conviction. Long years of fear and violence may lead revenge-thirsty victims and witnesses to carry out actions in tension with equality. While citizens agree that the past should never be repeated, they also agree that their suffering entitles them to satisfaction. As we have seen in the previous two chapters, constitutional democracy must recognize legitimate negative emotions. However, not all transitional justice laws voted for by a successor regime are conducive to a deepening of democracy. On the one hand, bills that treat victimizers as less than equal members of the community are not compatible with such a regime. On the other hand, laws that impose silence about the past fail to recognize victims’ suffering: they disempower and relegate them to second-order citizenship. Between these extremes, there is ample room for judgments that contextually affirm a concern for all involved. The questions that naturally emerge at this point are, How exactly should the judiciary stay true to its normative commitments while also engaging the emotional component of the political culture? What theory of adjudication can simultaneously account for processes of normative affirmation and emotional socialization? What kind of decision is the right decision from the point of view of constitutional democracy? How can courts reach this kind of decision? The next two sections will focus on answering these questions. Ronald Dworkin’s conception of “law as integrity” will provide the background for examining the way in which courts could contribute to the normative, institutional, and cultural reproduction of the democratic order. Lessons from the philosophy of reflective judgment will then be mobilized to strengthen Dworkin’s account of judicial decision making, highlighting the way in which principled decisions should be formulated with a view to having a pedagogical effect. The last section of the chapter will bring in the emotional dimension of the context of adjudication in order to complexify the role courts can play in transitional societies.

THE LIMITS OF “LAW AS INTEGRITY” Ronald Dworkin theorizes judicial review as one of the many potential institutions a society might establish in view of ensuring the legitimacy of constitutional democracy. His interpretive theory of adjudica-

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tion provides important theoretical resources for the arguments this book seeks to advance. Nevertheless, while Dworkin’s conception provides useful insights into the function that courts can perform in the reproduction of democracy as a regime, his account is incomplete. In what follows, I analyze and seek to overcome two shortcomings that I think his theory of adjudication suffers from. First, this section will disclose how a limited focus on the integrity of the legal system unduly disregards the broader circumstances of justice in general and the socio-emotional environment within which the judiciary functions in particular. As a consequence, Dworkin cannot account for either the manifold challenges the context poses to the work of courts or for the more subtle contribution processes of judicial review can make to the development of a democratic socio-emotional culture. Second, while Dworkin does acknowledge the role of reflective judgment in his theory of adjudication, it remains undertheorized: he only pays attention to judges as decision makers and does not adequately explore the perspective of the addressees of judicial judgments. In other words, he does not consider how the public could be inspired to embrace decisions that both further and transform the legal tradition. In the following section, I supplement his account of “law as integrity” with a more robust treatment of reflective judicial judgment. On Dworkin’s view, a certain set of conditions must be met in order for democratic decision making to count as legitimate. Equal concern for the interest of all members of the political community is a defining feature of constitutional democracy, and majoritarian decision making can ensure it, though not exclusively. When majoritarian procedures fail, courts must step in to make sure the legitimacy conditions are met. Dworkin thinks the main goal of a constitutional democracy is “that collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal respect.”16 A balance between the popular will and individual human rights must be established; however, it need not take the form of a court of rights review: “I do not mean that there is no democracy unless judges have the power to set aside what a majority thinks is right and just. Many institutional arrangements are compatible with the moral reading, including some that do not give judges the power they have in the American structure. . . . Democracy does not insist on judges having the last word, but it does not insist that

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they must not have it.”17 Dworkin’s contention is that the institution of constitutional review does not compromise liberty, equality, and community. On the contrary, under certain circumstances, it enables them. Liberty has no meaning unless one is recognized as a member of the relevant political community or, as I have claimed in chapter 2, one is under the protection of the others’ sense of justice. Judicial review can make sure the unpopular do not get excluded: equality of status—with all its limitations—is something that the constitutional court is equipped to guarantee. Dworkin also believes that the sense of community is not weakened by judicial review. On the contrary, a republican debate of a superior quality can take place about inspiring decisions by a constitutional court (rather than about legislation or even referenda).18 In exploring the function that judicial review performs in a constitutional democracy, Dworkin argues that the ethical integrity of democracy requires institutions to act in certain ways: alongside fairness, justice, and due process, integrity is a specific virtue that regulates the interpretive process: The integrity of a community’s conception of fairness requires that the political principles necessary to justify the legislature’s assumed authority be given full effect in deciding what a statute it has enacted means. The integrity of a community’s conception of justice demands that the moral principles necessary to justify the substance of its legislature’s decisions be recognized in the rest of law. The integrity of its conception of procedural due process insists that trial procedures that are counted as striking the right balance between accuracy and efficiency in enforcing some part of the law be recognized throughout, taking into account differences in the kind and degree of moral harm an inaccurate verdict imposes. These several claims justify a commitment to consistency in principle valued for its own sake.19

With regard to the burdens this virtue places on institutions, a distinction between two areas of integrity is required: “The first is the principle of integrity in legislation, which asks those who create law by legislation to keep that law coherent in principle. The second is the principle of integrity in adjudication: it asks those responsible for deciding what the law is to see and enforce it as coherent in that way.”20 Dworkin is

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not, therefore, concerned with integrity across historical epochs. On the contrary, promoting this cherished virtue might require ruptures with the past. The integrity that is required is horizontal, “across the range of legal standards the community now enforces.”21 Given the interest of this section, I now focus more closely on what integrity requires from judges.22 Dworkin uses an analogy between law and a chain novel to explain how adjudication should work. Each of the judges/writers contributing to the legal tradition/chain novel tries hard to make the law/novel “the best it can be,” in the sense of making it look more like the work of a single author (the democratic community) rather than that of a series of discrete contributors: “Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person’s situation is fair and just according to the same standards. That style of adjudication respects the ambition integrity assumes, the ambition to be a community of principle.”23 These rather general guidelines for adjudication are valid for common law, statute, and constitutional review, with the exception that, in constitutional interpretation processes, judges get closest to the guiding light of principles. Fidelity to the basic standards underlying the legal system requires that the judiciary try to constructively interpret specific laws in a way that best instantiates the tradition. Only thus can the integrity of the order be maintained. The main merit of Dworkin’s conception of constitutional democracy is that it offers a plausible account of how judges can simultaneously maintain and adjust a legal tradition by perpetually attempting to instantiate its guiding principles in practice. The historical novel of a polity is made up of various contributions and can be steered in different directions. Dworkin’s theory of lawmaking through adjudication— accommodating for both continuities and discontinuities—amounts to a plausible account of any democracy’s historical narrative, comprising both moments of equilibrium and more or less dramatic shifts. However, the distinction between justice, fairness, and due process is rather blurry, for these all seem to denote aspects of justice rather than discrete virtues. In other words, it is difficult to see how integrity would make sense as an independent virtue. Dworkin himself explains that integrity is horizontal consistency of principle and, by means of

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illustration, opposes it to consistency of policy. Acting consistently with equal concern and respect for each and every citizen is what grounds democratic legitimacy. Equal concern is a part of democratic justice, and it should be pursued at all times and across all persons. Consistency is a parasitic value, and it is obviously not always desirable.24 For example, the consistency of discriminatory practices cannot possibly count as a virtue. Only consistency in the service of democratic equality can ensure political legitimacy and ground political obligation, and it is the task of judges to exemplify how equal respect can be contextually, yet also consistently, observed in adjudication. Whether the chain novel of democracy is already lengthy or has only just had its first page written, whether it contains all its chapters or is missing some (as is the case with democracies that have lapsed into oppression for a period of time), a constant pursuit of democratic principles should guide institutions and citizens alike. Moving on to the limits Dworkin’s theory of adjudication, I propose his account would gain in complexity by considering—alongside the normative and institutional components of a legal system’s environment—the emotional circumstances of justice. More precisely, given the interest of this book, I want to draw the reader’s attention to the kind of obstacles and opportunities public emotions create for adjudication. While the arguments Dworkin provides count the institution of judicial review as one mechanism, among others, that ensures equal respect and concern for all members of the polity, his account is blind to the more subtle contribution courts could make to the deepening of democracy in general, and to transitional justice processes in particular. The reason for this blindness is his adopting a perspective internal to the legal system. In order to get a more refined understanding of the functions the judicial branch should perform, we need to enlarge our perspective on the circumstances of adjudication and pay attention to the socio-emotional context within which judges function. Critics have accused Dworkin of an important blind spot in his analysis of the law’s empire: he does not account for the sociopolitical realities of the judges’ professional environment.25 My point here is different, although I too want to disclose a problem in his portrayal of the circumstances of adjudication. Because of a lack of interest in the environment within which the legal system exists, Dworkin does not see the full complexity of what it is that judges should aim to

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accomplish within, and for, a democratic tradition. Given that we seek to outline the ways in which the judiciary should contribute to the maintenance and furthering of such an order, attention must be paid to all its dimensions: not only to the institutional and normative, but to its cultural-emotional component as well. Dworkin failed to see the socialization role that this institution should aim to play with respect to a society’s public culture, including politically relevant emotions. Only if we adopt this broader perspective can we acquire a complex understanding of what judges should strive to achieve when they adjudicate in transitional periods, and not only. Taken to its normative conclusion, Dworkin’s conception of “law as integrity” requires that judges reviewing transitional justice bills supported by emotionally mobilized majorities should not strive to suppress these negative emotional reactions. The argument advanced in this chapter is that a decision displaying integrity of principle must aim to simultaneously recognize and pedagogically engage the public’s negative feelings. While the courts’ recognition of resentment and indignation is implicated in their commitment to the principle of equal respect and concern for all, integrity also requires that courts state clearly which bills are permissible and which bills are not permissible in the name of a violated sense of justice. The principles whose integrity we are concerned with must extend their protective scope to include victims and victimizers, beneficiaries and bystanders. Integrity need not be subordinated or sacrificed for educational purposes. On the contrary, it is an education in normative integrity that this chapter is concerned with. A decision could potentially have didactic impact on people’s emotions only if it is oriented by the principles constitutive of a constitutional democracy; that is to say, a principled decision recognizes the legitimacy of negative emotion and discourages unfounded resentments and indignation, all the while proclaiming the limits that integrity of principle places on its public expression. And, as we shall see in the last section of this chapter, how these two tasks are accomplished depends on the magistrate’s contextualized judgment. At this point, one might correctly ask, what is the relationship between taking stock of emotions and the content of judicial decisions? To the extent that courts depart from integrity of equal respect by giving disproportionate attention to one side, they are not displaying “good” sensitivity; or rather, in such cases, judgment has strayed

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away from the orienting light of equal concern for all. Both victimizers and victims’ interests must be given proper consideration in the arguments judges give for their decisions. In times of emotional effervescence and contested victimhood, it is crucial that all parties be given a voice within safe arenas. More concretely, treating everyone with equal concern implies striking down bills that aim to stifle the possibility of public discussion about the past, annul responsibility for massive violations, or close victims’ avenues for redress. It also requires striking down bills that violate procedural protections for victimizers, for such bills subordinate some individuals’ rights for the sake of victims’ thirst for satisfaction. Bills excluding former oppressors from the scope of the democratic sense of justice, treating them as less than equal, cannot be upheld by reviewing courts. Arguments for why not all bills pass the test of equal concern have to be clearly provided and justified in the decisions. These are just a few ways in which negative evaluative emotions are given their due while at the same time being shown the limits of democratic appropriateness. How courts engage public emotion ultimately depends on the kinds of cases that come before them and on the constellation of political variables that determines how much freedom they have in carrying out their interpretive and legislative work. For example, the timing of the review processes plays an important role. The normalization and internalization of the transitional justice paradigm in the twenty-first century meant that states had less and less room to maneuver around the issue of taking the past seriously.26 These recent developments have made mere lip service recognition less likely today. The strengthening of international law, the creation of international courts that can step in when domestic courts cannot or will not take the initiative, and the increasing number of human rights organizations monitoring such processes in the world have changed the kind of calculations decision makers can make in the wake of violence.27 This has not always been the case, and the illustrative studies will show the importance of the temporal variable for the courts’ performance. No matter the context of the review, however, exemplary decisions contain the justification and ample treatment of the principles underlying democratic institutions must be communicated by the deciding court. Clearly elaborating the normative substance

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of democracy can engage the emotional reactions of both victims and victimizers as well as of the wider audience. In this way, judges explain to wider publics what kinds of acts provide appropriate grounds for resentment and indignation from the point of view of democracy. Moreover, their principled engagement with the past can help direct the target and calibrate the intensity and duration of negative emotional responses. This extra—pedagogical—function that judicial review should perform provides the institution with yet another layer of legitimacy.28 Democratic principles do not, however, offer precise formulae for decision making by the courts. They can guide judges who must use their reflective judgment when writing their decisions. The kind of decisions I am looking for are not the result of determinant box-ticking judgment, but of local reflective judgment. In order to understand the mechanisms behind judicial decisions and the ways in which they can provoke reflection by their audiences—of victims, their families, victimizers and their supporters, as well as the broader public—I will now turn to the philosophy of judgment. The hope is that this theoretical move will bring us closer to a more complex theory of adjudication for democracy, one that unveils the complexity of the role played by the judiciary as political actors.

JUDICIAL REVIEW AND THE EXEMPLARITY OF ORIENTED REFLECTIVE JUDGMENT Sparked by Hannah Arendt’s pioneering appropriation and “relocation” of reflective judgment from Kant’s aesthetics to politics, in the last few decades, a remarkable literature on this topic has developed.29 The proponents of this move claim that politics is not a science; it covers complex situations where no precise, easily applicable guidelines are available. While Kantian determinant judgment denotes the faculty that enables us to apply pregiven rules and principles to concrete situations, reflective judgment works within the complexity of the situation and attempts to derive the general from the particular. This makes the latter particularly relevant for the domain of political interaction. Taking some distance, enlarging one’s perspective so as to include as many views as possible, weighing different potential

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outcomes, and then making a decision intended to have persuasive force for others are the interrelated and inseparable moves involved in reflective judgment. While it seems easier to be persuaded about the pivotal importance of reflective judgment for politics, doubts might be raised about whether this kind of faculty is required for law in general and for judicial review in particular. Isn’t law the realm of determinant judgment in which judges faithfully apply the law to cases in front of them? This criticism seems to hold even more force when directed at civil law systems, where the role of judges has been historically—and, I will argue, falsely—envisaged as that of official automata speaking the voice of the law.30 The selection of the relevant facts, the identification of the relevant legislation, their interpretation, and the pronouncement of the final decision are all operations of reflective judgment. The absence of precise formulae for legal adjudication is most obvious in judicial review cases where, unless one is a radical textualist, the political nature of decisions cannot be denied. In transitional times, where competing visions of the past conflict and where various claims to victimhood clash in the public sphere, the need for contextual, innovative legal judgment cannot be denied. Alessandro Ferrara has proposed the notion of “oriented reflective judgment,” one that is particularly useful for rendering even more complex the contextually sensitive version of “law as integrity” we reviewed in the previous section. By deisolating the legal system from the emotional circumstances of justice in transition and by exploring the mechanisms at play in the interaction between the author and the addressee of judgments, I hope to illuminate how it is that judges should participate in wider democratization projects. In using reflective judgment as an unexplored source of normativity for the age of pluralism, Ferrara’s ambition is to provide an alternative to the neonaturalism that has flourished after the linguistic turn in contemporary political theory. While I do not want to examine the plausibility of his overall project, I find his notion of “oriented exemplary judgment” particularly useful for making sense of how courts should—and sometimes do—influence the emotional dispositions of citizens and the political positions of the other institutions they address in their decisions. In this sense Ferrara’s account provides the second missing piece from Dworkin’s theory of adjudication.

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Following in Arendt’s footsteps, but departing in considerable ways from her attempt to recuperate judgment for politics, Ferrara defines an “example” as a union of the “is” with the “should be” that puts into motion our moral powers and provides us with a sense of the possibilities for transformation.31 Examples can be familiar in the sense that one knows what an example is an example of. On the other hand, innovative examples cannot be understood by making reference to precedents. It is only post facto that we can understand their normative weight. Innovative judgment is most clearly present in political revolutions, the founding of new religions, or groundbreaking works of art. In politics the force of examples is of utmost importance due to the fact of pluralism and the perpetual contestation of principles. By setting the imagination and other moral powers into motion, exemplary judgments act as engines of historical change when no readily available principles, from experience or elsewhere, come to our aid.32 The “inspiringness” of the example lies entirely within itself, says Ferrara; however, this does not mean that reflective judgment is purely reflective or idiosyncratic. On the contrary, it is “oriented” by the fulfillment of identities: exemplary judgment operates within, though it is not restricted to, a context of shared truths. In the case of “us the moderns,” it is guided by the ideal of equal respect.33 The only valid understanding of reflective judgment that fits with the modern identity and its realities is reasonable judgment.34 Competing reasonable judgments within a society can be ranked depending on which of them best fits a shared idea of what “we” could be at our best.35 The idea of a community of judgment makes judgment possible both theoretically and concretely.36 When “we” evaluate “new and as yet unexplored alternatives,” “we” are guided by the ideal of equal respect that lies at the basis of our understanding of ourselves as heirs of modernity: “If we wish to talk of general principles such as the principle of equal worth or the right to demand justification or the discourse principle, or other such principle, as normative elements whose reach spans beyond our own particular identity, we can certainly do so. The point is, however, that the role played by them is always best understood as that of orienting our reflective judgment in the sense of what best proceeds from our shared truths.”37 The reference to the Rawlsian concept of reasonableness is explained

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by Ferrara’s belief that the validity of exemplary judgment depends on inclusiveness, i.e., on taking into consideration the positions of as many individuals as possible. It is these individuals’ consent that we are trying to woo when we communicate our judgment.38 By engaging their moral powers and, more precisely, their imagination, exemplary judgment can help its addressees enlarge their perspective: “Examples orient us in our appraisal of the meaning of the action not as schemata, but as well-formed works of art do: namely, as outstanding instances of congruency capable of educating our discernment by way of exposing us to selective instances of the feeling of the furtherance of our life.”39 This does not mean that exemplary judgment provides a checklist for its recipients to follow, but it encourages them to develop what Ferrara calls “second-order reflective judgments” about the validity of the first-order reflective judgments underlying exemplary or reasonable deeds, decisions, policies, practices, etc.40 A good second-order judgment is one that recognizes the originality of a first-order judgment and accepts the provocation that its exemplarity directs toward one’s own moral powers. A political institution, decision, or action is exemplary, and has fulfilled its purpose of generating good second-order reflective judgments, to the extent that it has stimulated citizens’ political imagination in such a way as to provide them with an enhanced view of the possibilities offered by their political life. Charisma and the ability to mobilize are two essential ingredients for the pursuit of this aim: What truly mobilizes us, instead, is something not only that meets our interests but also stirs our imagination and carries with it the promise of a “promotion, affirmation or furtherance” of our political life as well as the idea of a communicability of this experience. We do not think of something that mobilizes our political enthusiasm as something that merely meets our preferences: we think that the “vision” enshrined in that proposal, slogan, objective can potentially promote, affirm, or further everybody’s life. The ability to mobilize politically rests on the force of the exemplary to inspire conduct.41

This account of oriented reflective judgment and the power of its example to inspire good secondary reflective judgment provides the dimension missing from Dworkin’s account of adjudication: an expla-

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nation of how adjudication should work and how it should influence those on the receiving end of decisions, i.e., both the parties directly involved in the case and the wider public. Dworkin himself acknowledges the fact that the principles underlying a community’s theory of moral worth do not provide citizens and institutions with precise formulae for action; interpretation is always needed.42 “Fidelity to principle” can mean only that judges ought to let themselves be guided by principles, recognizing, however, that these principles do not offer obvious, unique answers for particular cases. Clearly, principles orient institutional and social decisions, but cannot be mechanically applied.43 Dworkin is not unaware of the crucial role judgment plays in legal interpretation, yet he undertheorizes it and fails to pay attention to the impact it has on the addressees’ evaluation of a decision. The kind of adjudication this book is concerned with is always politically informed, both in terms of its contribution to the building of a democratic identity and in terms of the moral, political, and material constraints—domestic and international—under which judges work.44 In the case of courts reviewing discriminatory transitional justice bills or presiding over criminal prosecutions of victimizers, judges do not have readily available precise rules that apply perfectly within the transitional context of their polity. The principles underlying precedents from other times and places—historical decisions issued within the same polity, decisions by international or other domestic tribunals, international legal documents—can guide adjudication without offering exact formulae. In this sense, principles are not univocal, but require careful interpretation and a contextualized weighing of their multiple voices.45 There are no clearly operationalized norms to be relied upon within the confused and demanding conditions of political transformations. Reflective judgment underpins context-appropriate decisions, but also contributes to the transformation of the polity’s political life in a way that encourages and enables its citizens to become “the best they can be” from the point of view of a democratic identity. Good reflective judgment enables courts to exemplify what a commitment to democracy might imply.46 Ferrara does not directly address the emotional dimension of the circumstances of politics. Yet the emotional context of reflective judgment is an important consideration for those who seek to persuade their addressees to follow in judgment. Negative reactive emotions

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constitute a politically relevant force within transformational periods, and, as such, they are a crucial part of the variables that enter judgment. During the emotionally charged moments of transitions, the evaluative dimension of these emotional responses must be steered. As we saw in chapter 2, the often feared emotions of resentment and indignation have a cognitive dimension, a judgment component that makes them part of the individual’s sense of justice. It is the presence of this evaluative component that enables emotions to change, based on the reassessment of the situation that provoked them in the first place. Institutions ought to engage this component of the emotion and woo those who have experienced—and continue to experience— injustice affectively to enlarge their perspective. The aim is to provoke the public’s imagination in a way that distracts them from their immediate desire for the satisfaction of their moral anger. By dialoguing with the addressees’ moral powers, courts should contribute to a process of democratic emotional socialization. The individual’s sense of justice must be enlarged to take into account the voices of victims and victimizers, of losers and beneficiaries of violence. The provocation to reflection takes the form of exemplary first-order judgments from institutions.47 Citizens must be inspired to ground their emotional reactions in good second-order reflective judgments and recognize as many points of view as possible, i.e., to form democratically appropriate negative emotions. This intersubjectification of the judgments underlying emotions is the mechanism that lies behind what I have earlier called democratic appropriateness. Anyone can author good reflective judgment, but in the emotional effervescence surrounding transformational periods, and given the contested nature of victimhood in such circumstances, exemplary first-order judgments by judges—capable of taking enough distance to achieve impartiality and of acting prudently within the existing historical constraints—can lead the way so that no one has solid grounds for feeling resentful. Ricoeur emphasizes this aspect of the success of judgment in law: I think that the act of judging reaches its goal when someone who has, as we say, won his case still feels able to say: my adversary, the one who lost, remains like me a subject of right, his cause should have been heard, he made plausible arguments and these were heard. However, such recognition will not be complete unless the same thing can also

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be said by the loser, the one who did wrong, who has been condemned. He should be able to declare that the sentence that condemns him was not an act of violence but of recognition.48

Yet legally correct decisions are not all there is to exemplarity. Judges reviewing transitional justice bills are at the same time spectators of history—evaluating the political circumstances with which they find themselves—and agents thereof—selecting the type of arguments and decisions that are most likely to persuade citizens to accept the provocation to reflection addressed to them. It is in response to inspiring, historical judgments that individuals might learn to take responsibility for what they feel is owed to them and what they want to do in the name of their violated sense of justice.49 In other words, exemplary decisions might promote the development of democratically appropriate emotional responses by all the potential publics, irrespective of which side of history they find themselves on. At this point, we need to address three questions skeptics might ask. First, one might reasonably argue that it is not clear, in giving correct decisions, that courts are educating the emotions, rather than simply respecting the rights of citizens.50 This chapter argues that respecting the rights of the citizens is a necessary precondition for courts to achieve their pedagogical role with respect to emotions. Legality has a pedagogical function in that it affirms the limits liberal democracy places on victims’ desire for vindication. Legality, i.e., the concern with respecting citizens’ rights, should not be sacrificed for—or subordinated to—the purpose of pedagogy. However, enforcing respect for everyone’s right is not sufficient. This chapter argues that it is not just procedurally correct, but exemplary, inspiring judgments that can move victims and victimizers, as well as the broader audience, to adjust emotionally to liberal democratic principles. Procedurally correct decisions that also mobilize the normative, political, and cultural resources available within the lifeworld of the political community are likely to resonate with the public. This presupposes that courts understand their role as political actors and the power they have to shape public debate and institutional reform in their home societies. As we shall see later on, the case studies that follow in the last section of this chapter will give concreteness and reveal the salience of these rather abstract hopes.

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Second, where can we find judges motivated to perform such exemplary deeds in the aftermath of oppression and violence? The account I have presented may seem to some to bear a strong flavor of naive idealism and judicial romanticism. In the aftermath of state-sponsored oppression, the judiciary is either too weak or tainted by collaboration with the ancient regime. Judges have rarely resisted the governments of oppressive regimes, and then not always successfully.51 If they have any experience, it is usually the wrong kind of experience from the point of view of democracy. In most cases, it would be unreasonable to expect extraordinary, exemplary first-order judgments to come from the courts. History has, however, given us a few examples in which judges have lived up to what might otherwise be seen as idealistic expectations. I will discuss several such cases in this book. But where such noble motivations are not available, we can only hope that strategic reasons will move judges to make decisions that they would not otherwise make. International attention and pressure, the desire to entrench their own institutional power vis-à-vis the legislative and the executive, and sometimes even a concern for the safety of their professional positions might motivate them to contribute to democratic civic education efforts.52 The third question one might ask at this point in the development of our democratizing adjudication is the following: why should we see judicial review as an attempt to engage the moral powers of citizens and not as overpowering majorities? One cannot deny that judicial review of legislation has a binding force on their parliaments. Overruling a review decision would require extraordinary parliamentary majorities, most of the time impossible to achieve. The coercive aspect of review cannot be denied; yet, while most of the time external motivation has been the effect of decisions, the constructivist conception of emotional socialization recommends that intrinsic motivation should always be our main objective. Going beyond mere external coercion requires that judges elaborate on the principles underlying their decision, present them in a communicable way, and aim to respectfully engage the cognitive dimension of outrage. If resentment and indignation are symptoms of a violated sense of justice and not merely physiological, irrational reactions, then courts must treat these emotions with due respect, while at the same time provoking their audience to reflect and integrate democratic principles in their practices of political engagement as citizens.

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To summarize, this chapter has so far tried to argue that, in the aftermath of conflict, violence, and oppression, judicial review should aim to contribute to the development of a democratic culture by virtue of its maintaining the normative integrity of equal respect and concern for all. Ronald Dworkin’s “law as integrity” has been used as a starting point for formulating a democratic theory of adjudication. Its insufficient perspective on the complexity of the circumstances of democratic—and judicial—politics, as well as its undertheorized account of judicial judgment has created an opening for this chapter’s theoretical contribution. The focus on the socio-emotional context requires that we address the issue of how a court of constitutional jurisdiction should acknowledge the legitimacy of negative emotions and, at the same time, serve as a filter. The need for such a filter is necessary at all moments within the life of a democracy, but it has to work exceptionally well within the foundational and formative moments of tormented transitions. Courts should try to ensure that the majority’s sense of justice is stretched enough to cover all those affected by the majority’s decisions, i.e., that resentment and indignation are democratically appropriate. By reviewing transitional justice bills in ways that affirm and communicate respect for all, courts can help shape the judgments appropriate for a democrat’s sense of justice. Getting individuals “to have the right attitude, on the right occasion, toward the right object, and in the right degree” is something that the judiciary can and should help with,53 even in the absence of accurate “recipes” for success.

REFLECTIVE JUDGMENT IN CONTEXT I:JUDICIAL REVIEW OF TRANSITIONAL JUSTICE BILLS In this last section of chapter 3 we will look into two cases of judicial review of transitional justice bills. The first subsection deals with the challenge to the constitutionality of the South African Truth and Reconciliation Commission raised by the relatives of black resistance heroes. The second subsection presents the long struggle by relatives of the victims of the Dirty War in Argentina to reverse the amnesty laws and pardons that ensured the impunity of the military. While the first case illustrates how judges have “talked to” and recognized the

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emotions of the victims in the very text of the decision, the second illustrates the resilience and creativity of emotional mobilization in Argentina’s quest for justice.

South Africa Whilst the settlement offered many opportunities, flowing from it were many undesired consequences. One of it shortcomings was the moral equivalence it extended to both sides of the conflict. With this approach came ambiguity of the true cost of our freedom. No description so undermines our national sacrifice than the term “miracle.” The abolishment of slavery, the end of the Jewish Holocaust, and the end of the Rwandan Genocide are simply that—an end to the most unfortunate periods in the history of humanity. Miracles do not come at such cost. The cost having suffered, it is no miracle when humanity finds that which it should never have lost in the first place—its sanity. —Nkosinathi Biko, Steve Biko’s son (May 7, 2006)

Without the amnesties associated with the political negotiations that led to the end of the apartheid era, “we would have been overwhelmed by the bloodbath that virtually everyone predicted as the inevitable ending for South Africa.”54 The legal and political landmark of the negotiated transition to democracy was the Promotion of National Unity and Reconciliation Act instituting the Truth and Reconciliation Commission, signed into existence by the president of the republic on the July 19, 1995.55 The purpose of the commission “was the establishment of a complete picture of the nature, causes and extent of gross violations of human rights” committed during the apartheid regime.56 Both the motives of perpetrators and the perspectives of the victims were to be taken into account in constructing as broad and precise a picture of oppression as possible. Most controversially, the document provided for “the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective.”57 In order to carry out this difficult work, three committees were created: a Committee on Human Rights, dealing with gross violations and empowered to gather and receive information; a Committee on Reparation and Rehabilitation, tasked with gathering information

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and making recommendations for reparations to the president; and a Committee on Amnesty, having the power to grant amnesties for violations of human rights that were politically motivated, on condition of full disclosure of the truth by the applicants.58 The establishment of the TRC generated fervent debate, which focused on the morality, prudence, and legal status of such an institutional response to a past of symmetrical barbarism.59 Many victims saw the establishment of the TRC as robbing them of justice. Empirical research in South Africa reveals the dissatisfaction that many felt regarding the subordination of retributive—and redistributive—justice to social peace.60 I shall not engage here in an analysis of the arguments made in favor or against this most famous mechanism of transitional justice. This section is concerned with an event in South Africa’s transitional saga that has received somewhat less scholarly attention, namely the challenge to the constitutionality of the TRC initiated by the families of prominent resisters to the apartheid regime. Given our interest in the ways in which the judiciary can engage citizens’ negative emotions within transformational moments, I focus on the South African Constitutional Court’s arguments in the “Azanian Peoples Organization (AZAPO) and others v President of the Republic of South Africa and others,” Case CCT 17/96, decided on July 25, 1996. The plaintiffs in this case were the families of black resistance legend Steven Biko, killed while in police custody in 1976; lawyer Griffiths Mxenge, killed by security policemen in 1981; and African National Congress activist Fabian Ribeiro, killed in 1986.61 The members of their families could not accept that the brutal murderers of their beloved enjoyed civil and criminal indemnity. Their lawyers argued that the amnesty provision obliterated the right to justice, both in the form of criminal prosecutions and civil compensation. The target of their challenge was the constitutionality of section 20(7) of the Promotion of National Unity and Reconciliation Act, which provided that no person, organization, or state should be criminally or civilly liable for any act or omission that amounted to human rights violations committed for “political reasons.” The plaintiffs claimed that section 20(7) was in conflict with section 22 of the Constitution, which stipulated that “every person shall have the right to have justiciable disputes settled by a court of law or, where appropriate, another independent or impartial forum.”62 The constitutional status of the Epilogue to the

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Constitution—the text enabling Parliament to pass amnesty provisions in the TRC statute—was challenged. The plaintiffs argued that the Epilogue was not part of the text of the Constitution and, therefore, was not covered by section 33(2), which outlined the rights-overriding clauses: The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation(a) shall be permissible only to the extent that it is(i) reasonable; and (ii) justifiable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question, and provided further that any limitation to(aa) a right entrenched in section 10, 11, 12, 14(1), 21, 25 or 30(1) (d) or (e) or (2); or (bb) a right entrenched in section 15, 16, 17, 18, 23 or 24, in so far as such right relates to free and fair political activity, shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary.”63

Desmond Tutu and the African National Congress were made unhappy by the news of this challenge and labeled the legal action a self-righteous attempt to undermine their reconciliation efforts for South Africa.64 The families were negatively portrayed as unwilling to forgo their right to retribution for the sake of the greater good of peace and unity. In contrast, the judgment of the Constitutional Court showed a more sensitive understanding of the kind of emotional costs victims and their families had to pay for the sake of truth and reconciliation. The Court carefully legitimized the moral outrage of the victims’ relatives by recognizing its appropriateness as a response to suffering and uncertainty over the fate of their beloved. As we shall see, throughout the text of the decision, the author (Judge Ismail Mahomed) expressed deep concern for the emotional strain felt by the South African population, both before and after the negotiated transition. Nevertheless, the court ruled in support of Parliament’s decision to institute a TRC with amnesty powers. Although the judges declared that their only concern was to see whether section 20(7) of the TRC statute was constitutional

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or not, they constructed a multilayered argument as to why the TRC was the optimal choice for the political circumstances of postapartheid South Africa. In retrospect, we can say that the judges’ elaborate defense of the legislature’s stance on the past was grounded in an understanding of the emotional hardship that the very existence of the TRC created for victims and their families and in an awareness of the novelty of such a mechanism for dealing with a past of symmetrical barbarism. Giving victims their due was to take a new, nonretributive form. The task facing the court was thus to persuade the victimized of the validity of this alternative form of recognition, just as valuable as that enabled by criminal justice and civil compensation. The judgment also reflected the court’s trust in the TRC’s ability to distinguish between political and nonpolitical reasons for human rights violations, a distinction that theoretically left the path to retributive justice at least partially open. In what follows, a more detailed analysis of the judges’ arguments reveals how the young Constitutional Court perceived its own historical role in this important case. The introduction to the decision retells the story of the shameful past and its legacies for the present. The oppressiveness of the regime is juxtaposed with the increasing anger of the subordinated black population. The difficulty of building a democracy on the ruins of the apartheid state is acknowledged: It was wisely appreciated by those involved in the preceding negotiations that the task of building such a new democratic order was a very difficult task because of the previous history and the deep emotions and indefensible inequities it had generated; and that this could not be achieved without a firm and generous commitment to reconciliation and national unity. It was realised that much of the unjust consequences of the past could not ever be fully reversed. It might be necessary in crucial areas to close the book on that past.65

The “deep emotions,” the “indefensible inequities,” and the impossibility of reversing the past required that society turn its back on desires for retribution. The Epilogue of the Constitution is taken as a testimony of the will of the people—through their representatives—to look forward to peace, unity, reconciliation, and reconstruction.66 It is on the basis of this declaration of intention in the Epilogue that

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the Parliament passed the statute creating the TRC. In this sense, the court emphasizes, the TRC was the product of a democratic will and, hence, legitimate. Judge Mahomed then moved on to a step-by-step examination of the challenge to the constitutionality of the TRC statute. With great care and drawing references to section 232(4) of the Constitution, the court explained how the Epilogue, under which the TRC statute had been legislated, was as much a part of the Constitution as any other section. As such, it correctly entitled Parliament to exercise amnesty powers: The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed. With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.67

This text, said the court, legitimized the decision to provide amnesty for both civil and criminal offenses as a means to move beyond division and toward a future of unity and mutual understanding. The court engaged in a long discourse about the tragic dimension of the

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South African transition and a defense of the parliament’s choice of institutional means to deal with the past. The author’s apparent intention was to appeal to the plaintiffs’ judgment and persuade them that, under the circumstances, there could not have been any other way of dealing with the past. The discourse showed respect for the plaintiffs’ anger and sought to acknowledge the legitimacy of negative emotions, at the same time trying to woo their consent to the idea that the court had to stand by the Parliament’s decision. Criminal and civil liability for individual wrongdoers—as well as civil liability for organizations and the state—were subordinated to the greater social good of reconciliation, through the vehicle of truth telling. A different kind of recognition was promised through the proceedings of the TRC: recognition of the victims’ right to know the truth and to forgive. Let me reconstruct in more detail the arguments that the court prepared for the aggrieved families. Judge Mahomed dealt, first, with the issue of immunity from criminal prosecutions. He began by acknowledging the emotional frustration of a victim’s family when amnesty was granted to the killers: “Every decent human being must feel grave discomfort in living with a consequence which might allow the perpetrators of evil acts to walk the streets of this land with impunity, protected in their freedom by an amnesty immune from constitutional attack, but the circumstances in support of this course require carefully to be appreciated” (11). Given that the abuses had taken place a long time ago and that the previous regime had been based on lies and secrecy, there was no reliable data to ensure an accurate establishment of responsibility. As a consequence, amnesty was a safer bet from the point of view of justice: “All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions, deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and corroborative evidence which could survive the rigours of the law” (18). A democratic concern with the risk of abusive trials was invoked to strengthen the case for the commission. In addition, a forum where survivors could meet and share stories was proposed as more likely to give voice to all sides, hopefully contributing to reconciliation. Without the incentive of freedom from criminal prosecutions, victims’ relatives could not hope to learn the truth about those they had lost

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and victimizers would have to continue experiencing the guilt and anxiety associated with culpability: Without that incentive there is nothing to encourage such persons to make the disclosures and to reveal the truth, which persons in the positions of the applicants so desperately desire. With that incentive, what might unfold are objectives fundamental to the ethos of a new constitutional order. The families of those unlawfully tortured, maimed or traumatised become more empowered to discover the truth, the perpetrators become exposed to opportunities to obtain relief from the burden of a guilt or an anxiety they might be living with for many long years, the country begins the long and necessary process of healing the wounds of the past, transforming anger and grief into a mature understanding and creating the emotional and structural climate essential for the “reconciliation and reconstruction” which informs the very difficult and sometimes painful objectives of the amnesty articulated in the epilogue. (18–19)

Disregarding some problematic psychological assumptions about the relationship between truth, healing, and the anxiety that violators of human rights experience, the court expressed here a clear concern with emotional responses to human rights violations. More important, an acute understanding of the necessity of a stable emotional environment for the furthering of political and social reform emerges from the text. Had amnesty not been proclaimed, prosecutions would have been selective, information about the injustices that had occurred would not have been readily available, and truth would not have surfaced. Negative emotions would have remained alive and prevented the crossing of the historical bridge to a democratic future: The alternative to the grant of immunity from criminal prosecution of offenders is to keep intact the abstract right to such a prosecution for particular persons without the evidence to sustain the prosecution successfully, to continue to keep the dependants of such victims in many cases substantially ignorant about what precisely happened to their loved ones, to leave their yearning for the truth effectively unassuaged, to perpetuate their legitimate sense of resentment and

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grief and correspondingly to allow the culprits of such deeds to remain perhaps physically free but inhibited in their capacity to become active, full and creative members of the new order by a menacing combination of confused fear, guilt, uncertainty and sometimes even trepidation. (19)

If amnesty had not been granted, the negotiations that led to the end of apartheid would never have succeeded. If prosecutions had been organized, there would have been a high chance of miscarriages of justice. If the prospects of retaliation and revenge had been kept alive, no transformation would have been possible. All these conditionals were brought to bear on the argument that there was no other way forward but to opt for a TRC in the form it eventually took within the South African context. However, the court reminded its audience not to forget that amnesty was conditional: it required full disclosure of the truth, and immunity from prosecutions was granted only for politically motivated crimes. The Committee for Amnesty was to closely follow the criteria for identifying politically motivated actions in order to make sure that amnesty was awarded on proper grounds. In addition, the court emphasized the fair nature of the amnesty: unlike many cases in Latin America, this was not a self-proclaimed, abusive amnesty by a military junta losing power, but a democratically chosen transitional measure. At this point in the text of the decision, the tragic dimension of the decision makers’ judgment received its due attention. The court acknowledged the difficulty of balancing claims to justice and stability, “between a correction in the old and the creation of the new” (22). The judges considered that Parliament’s institution of a forum for talking and listening—instead of one for punishing—was a good step toward a better future for all the citizens of the republic. Once the domestic, constitutional obligation to prosecute was dismissed, the court proceeded to engage the claim that international law required that gross human rights abuses, such as those experienced in South Africa, be prosecuted. The court responded by showing how international legal instruments could not become valid law for South Africa until made so through legislative enactment. Since that had not yet happened, there was no international duty to prosecute. In

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addition, the type of conflict that had plagued South African society could not be equated with the contexts the Geneva Conventions dealt with (26–31). The next step was the justification of the annulment of civil liability for individual wrongdoers. By way of a semantic analysis of the term amnesty, the court explained why the concept could not be limited to criminal liabilities. In addition, the search for truth—the justificatory goal of amnesty for criminal offenses—would best be served by canceling civil liabilities. It would have been counterintuitive and counterproductive to proclaim amnesty for one kind of offense only (37); horizontal consistency required a broader approach. The issue of the state’s civil liability raised the bar of justification even higher. In the end, the court circumvented this problem—not unproblematically—by pointing to the scarcity of resources and the need to channel them into alternative paths of reconstruction such as national social policies: “The resources of the state have to be deployed imaginatively, wisely, efficiently and equitably, to facilitate the reconstruction process in a manner which best brings relief and hope to the widest sections of the community, developing for the benefit of the entire nation the latent human potential and resources of every person who has directly or indirectly been burdened with the heritage of the shame and the pain of our racist past” (40). Last, the immunity from civil liability held by organizations to which the victimizers belonged was redeemed by pointing to the fact that it was due to the efforts of these organizations—in negotiation with the alternative elites—that democracy came about. Their contribution to the cause of democracy required that they be released from their civil obligations: “In his concluding remarks, the author of the decision expresses his conviction that . . . the Constitution authorised and contemplated an ‘amnesty’ in its most comprehensive and generous meaning so as to enhance and optimise the prospects of facilitating the constitutional journey from the shame of the past to the promise of the future” (46). The court thus fully embraced the judgment of the lawmakers and, in its turn, decided to uphold the constitutionality of the TRC statute. The court’s attention to the emotional dimension of the legal claims emerges clearly from the reconstruction of the legal arguments rehearsed previously. The text of the opinion suggests that the judges realized the importance of a stable emotional climate in the context

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of transition, and that they were painfully aware of the material and political constraints that limited the prospects of redress. The deep fractures in South African society and their emotional expression in resentment and indignation were a constant theme in the arguments of the court. The judges acknowledged that such emotions were legitimate, but tried to persuade the public that retribution is not the only way to recognize victims’ suffering. On the contrary, finding the truth and being given the opportunity to tell a story within the TRC constituted an alternative—and just as valid—form of institutional redress. The TRC provided a sort of compensatory venue for these feelings to be expressed in public.68 The decision transmits a rather strong— and I would say unfounded—belief that social catharsis would ensue from encounters between victims and victimizers. Under the circumstances, it is not surprising that the judges endorsed the decision of Parliament. In the course of their arguments, they tried to engage the judgments underlying the victims and relatives’ negative feelings in a way they thought was most conducive to strengthening the fragile South African democracy, asking them to accept the political experiment in truth and reconciliation that the commission represented. Given the exclusion of retribution from the institutional arrangements under scrutiny and the heightened level of emotional frustration experienced by the complainants, the decision was met with disappointment. The Azanian People’s Organization said that “it [the decision] takes away a fundamental right of the people to apply to the courts for adjudication. We think this has important consequences for democracy in this country.”69 In spite of the court’s justificatory endeavor and commendable attempt to “talk” to the plaintiffs’ emotions and their efforts to transform resentment and indignation by pointing to the healing potential of truth telling, they did not meet South Africans’ expectations. Their argument regarding the inevitably selective and abusive form criminal justice would take under the circumstances was not persuasive to the addresses. As time went by, it became clear that the institutional and normative limitations of the TRC, its problematic relationship with the Prosecutorial Office, the lack of an evaluation of the apartheid regime as a whole, and a limited attendance to the victims’ needs left the immediate families of the victims,70 as well as large segments of the population, dissatisfied and angry.

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In the Biko case this dissatisfaction was later fueled by the fact that, in spite of the TRC’s rejection of amnesty applications by Biko’s killers, trials were never held. The official reason was lack of sufficient evidence.71 A long time after this second denial of criminal justice, Biko’s son wrote of the bitter taste of negotiated settlements: White South Africans must reckon with history for what it is and not for what they wish it to have been. We can then choose to roll up our sleeves, and occupy our place as citizens of significance who get on with the business of rebuilding South Africa or we can, once more, palm this responsibility off to our children. If we choose the latter, then I am afraid my children will be making these very points many years from now. Only then it may not be through the power of the pen but “by any means necessary.”72

As we see from this statement, there is a chance that, left unvindicated, the feelings of frustration and disappointment, and a lack of trust in institutions’ power—and willingness—to reform, will reproduce themselves across generations. This is not only true in the case of Biko’s son. Empirical studies have shown that postapartheid failures of justice have contributed to the widespread culture of impunity and violence in today’s South Africa.73 The promise by the Constitutional Court remained vacuous due to the judiciary’s failure to prosecute individuals whose amnesty requests had been denied by the TRC. Compounded by the lack of compensation and redistribution programs, this problem aggravated the South African majority’s feelings of anger and disempowerment. To sum up, while the court did its best to acknowledge the victims’ demands and to persuade them of the merits of a truth and reconciliation forum, the novelty of this institutional experiment, the principled compromise it proposed, and the subsequent failures of the justice system left many dissatisfied. Acting under constraining circumstances, the court exemplarily acknowledged the emotional burdens of apartheid and tried to mobilize a number of arguments in favor of the TRC. It was inevitable that many could not accept the proposal that truth telling would count as a meaningful, sufficient alternative to retribution.74 The idea that survivors and families of victims be content with knowing the truth and advance toward national reconciliation did

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not successfully woo the public’s agreement and did not provide the plaintiffs with the redress they wanted. But it was when penal courts failed to follow up on the recommendations of the TRC that even the modicum of retributive justice allowed by the transitional arrangement became impossible. Adding to this the absence of meaningful forms of distributive justice, we can easily see why feelings of resentment and indignation remained unappeased. The culture of impunity that emerged from the failure to deliver justice left negative emotions alive, consolidated distrust in the democratic institutions, and led to an increased use of violence for solving conflicts within South African society.75 Had the truth revealed at the TRC been accompanied by a measure of retributive justice for the cases that could not be amnestied, had there also been plans for socioeconomic justice, the politico-emotional climate in the South Africa might have been different.76

Argentina And I ask myself why? What gives him the right to bring terror back into my life; what right has he got to enter my house, to enter everybody’s house; what gives him the right to frighten, through a screen, those who did not get to know him personally . . . with what right? With all the right given him by the impunity we are experiencing; with the right of the law that leaves him free to speak of his crimes; with the right given him by people unable to shout ENOUGH, a right given by a government that allows him to live in freedom among us, his victims, in this society, among a people who declared NEVER AGAIN, a NEVER AGAIN that remains unspoken, and which does not exist. —Delia Barrera, desaparecida (August 1995)

Between 1976 and 1983, several military juntas violently and arbitrarily ruled Argentina. The fall of the dictatorial regime was triggered by the defeat of the Argentine forces in the Falkland Islands war at the beginning of the 1980s. During the period of military rule, the Supreme Court of the country had repeatedly petitioned the leaders to clarify the status of thousands of missing individuals, but was regularly snubbed by subsequent juntas who claimed not to have any knowledge of what had happened to the disappeared.77 Just before losing power, the military passed a self-amnesty law, the 22924 National Pacification Law, suppos-

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edly meant to set the ground for reconciliation. In fact, it stipulated a blanket amnesty for all subversive and countersubversive acts that had taken place between May 25, 1973, and June 17, 1982.78 In this way, the officers left power ensuring that human rights abuses—the most notorious of which were the “disappearances” of numerous Argentine citizens suspected of leftist, subversive activities—would never be prosecuted.79 El Documento Final, a public document in which the junta stated that the subversives were all dead and that the country needed to move toward reconciliation, was met with large-scale street demonstrations: thirty thousand people marched in the capital alone.80 The Argentine Truth Commission (CONADEP), established in December 1983 by newly elected president Raúl Alfonsín, reported a frightening number: 8,960 victims of “disappearance.”81 Immediately upon taking power, the president argued against the constitutionality of the National Pacification Law, which eventually got nullified. As a consequence, the prosecution of the top military and left-wing guerrilla fighters who had committed massive human rights abuses since 1976 began.82 In order to appease the military, the highest military court was charged with the task of prosecution, but when it refused to hear cases the proceedings were transferred to civil courts.83 In addition, the president asked that the “due obedience” defense be considered valid. This meant that lower ranks could defend themselves on the grounds that they had been merely observing orders from their superiors. Because of the fragile balance of power after the regime change, Alfonsín and his team of legal experts opted for political prudence and punitive restraint in the quest for justice.84 The president’s intention was to have an exemplary trial of the top leadership of the army in order to appease the social demand for justice, while avoiding the appearance of a targeted attack on the military. But his judgment was proven wrong by the events that followed. Argentine citizens as well as the judiciary were not ready to accept this kind of tokenism. The 1985 trial of the junta leaders was met with great public excitement.85 Generals Videla and Massera received a sentence of life in prison; Agosti, four and a half years; Viola, seventeen years; and Lambruschini, eight years. Graffigna and all three members of the third military junta were acquitted.86 The trial’s main shortcoming was its not so clear stance on “due obedience.” This ambiguity cleared

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the way for further prosecutions of lower-rank officers. Naturally, the military saw this as a threat and an insult, drew ranks, and threatened to disrupt the already fragile peace.87 In response, the president and his aides opted again for prudence and prepared two bills intended to limit the impact of prosecutions. The first was the Full Stop Law (23492 Punto Final, 1986), which gave courts and prosecutors sixty days in which to press charges. Unexpectedly, the courts proved very active and fast in prosecuting a great number of cases before the term expired, working throughout their entire official vacation period. As a consequence, the military organized a rebellion, which made Alfonsín pass the Due Obedience Law (23521 Obediencia Debida, 1987), statutorily limiting responsibility to the highest ranks of the military. The law halted proceedings against middle-rank officers. Human rights groups challenged this law, but the Supreme Court of the country upheld its constitutionality.88 In this way the march toward justice came to a standstill. The last blow for victims and their families came shortly after in the form of President Carlos Menem’s pardon of all officers already convicted for crimes committed during the Dirty War”89 From a socio-emotional point of view, these events pushed Argentine society in two directions. On the one hand, widespread apathy, a general feeling of disempowerment, and complacent tolerance toward former oppressors who continued to live next door to their victims reflected the apparent dysfunction of the Argentine transition.90 Needless to say, public perceptions and attitudes such as these diminished the quality of democracy and were symptomatic of a widespread lack of trust in political institutions’ capacity to deliver justice. On the other hand, strongly mobilized civil society groups, especially those associated with the relatives of the murdered and the “disappeared,” began to put increasing pressure on subsequent administrations. Political mourning became a new form of democratic participation, and so were marches against impunity. Street demonstrations, litigation, and various public rituals gave expression to public anger at the unjust laws.91 While some groups were eventually satisfied with compensation and subsequently demobilized, others continued to press for criminal justice, claiming they could not be bought either with money or with bones.92 Testimonies of atrocities under the shelter of immunity by major military figures through the 1990s made the relatives of victims even

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more vocal in the demands they were making to the state, whether through litigation or public statements.93 Their violated sense of justice could not be reconciled with the fact that murderers and torturers were walking free. The presence of the victimizers became more and more offensive as they managed to monopolize the attention of an uncritical media seeking sensationalism everywhere.94 An excerpt from a poem by a survivor—Alicia Partnoy, a political prisoner of the dictatorship—is emblematic for the emotional atmosphere in the camp of human rights activists: I carry my rage like a dead fish, limp and stinking in my arms. I press it against my breast, whisper to it, people on the streets flee from me . . . I don’t know: is it the smell of death that makes them flee or is it the fear that my body’s warmth might bring rage back to life?95

Artistic representations became an important mechanism for resentful survivors and indignant witnesses to express their dissatisfaction with the regime of impunity. Sometimes groups of activists took justice into their own hands, engaging in public rituals of disclosure, humiliation, and stigmatization of torturers and victimizers. While the Madres de Plaza de Mayo96—the association of the mothers of the disappeared—are famous worldwide for their weekly marches in protest of the amnesty laws, the escraches, a form of public theatrical denunciation associated with H.I.J.O.S.,97 is less known yet no less efficient. Escrachar means, in the slang of Buenos Aires, “to reveal,” “to uncover,” “to expose.” As rituals of disclosure and condemnation, the escraches became one of the most creative outlets for negative emotion and a powerful weapon against the amnestied and generalized public complacency.98 The escrache involved careful preparation and planning that started long before the date of the actual event. Gathering relevant and reliable information was the first step. H.I.J.O.S. usually relied on the archives of the Madres and on the legal documents that stipulated the victimizer’s participation in the repression. Most of the escracheados had been prosecuted before the passing of the Punto Final law and the subsequent pardons, hence the information about their case was public and reliable.99 Finding a recent photo of the victimizer

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constituted a crucial task, since deanonymizing a victimizer required naming the name, but also pointing out the face. Activists would then move into the public space of the neighborhood; meet with community associations, artists, interest groups, and individuals; hand out information about the identity of the victimizer; and mobilize the locals’ support. Posters with the photo of the represor, his name, address, his crimes as well as the place, date, and time of the escrache were distributed in advance. On the day, the demonstrators would gather in a park or in any other common space and then march toward the assassin’s house. They would carry giant dolls and effigies, play music, give speeches in which they expressed their indignation at the victimizer for having been a torturer and at the state for doing nothing. They warned his neighbors about his presence in their building or on their street. They distributed pamphlets, presented improvised theater scenes, made lots of noise, wrote denunciations on the sidewalks and walls of the victimizer’s house, rolled in military pigs-on-wheels, and symbolically threw red paint on the doorstep.100 A manifesto was typically read, promising that the struggle for justice would continue for as long as the state failed to deliver it. Uncomfortable questions confronted passersby and neighbors: “Did you know that your neighbor was a torturer? How do you feel about working with him? Or serving him lunch? Or selling him cigarettes?101 The rallying slogans—“If there is no justice, there is escrache!” and “Thirty thousand disappeared peers are present, now and forever”—meant that the struggle for justice would continue and that voices of the disappeared could be heard through the voices of the participants. Poster-size photos of the disappeared made their symbolic presence even more powerful. In many cases, the represores, knowing what was about to happen, would get the support of the courts and the police. The demonstrators would often find police pickets surrounding the house of the victimizer. Some actors would join the police lines bearing banners, which read: “Serving impunity.” Sometimes, the neighbors joined the demonstrators in their denunciation and subsequently started avoiding the victimizer. Others shut themselves in their houses, turned off the light, and waited for the event to be over. Some parents took their children elsewhere, to prevent them from getting contaminated with this antisocial, “hooligan” behavior.

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A special kind of escrache uncovered places, rather than people. Such is the 2000 escrache of two torture and detention sites in Buenos Aires, the Olimpo and the Orletti garages. In such cases, the garages were redescribed as “concentration camps.” The activists would advance holding hands, interpellating the public indignantly: “Neighbours, listen up! Did you know that you live next to a concentration camp? While you were at home, cooking veal cutlets, people were being tortured in those camps.”102 In yellow paint, activists would write down all the crimes committed in those horrid sites, thus marking the place as one of injustice, not one of mundane car service. First and foremost, these emotionally anchored performances targeted the torturers and assassins, aiming to make it extremely difficult for them to lead a normal life. In the absence of recognition by the state, survivors and families of victims expressed their resentment and indignation through performance. Opting for artistic expression of negative emotions—rather than engaging in extralegal violence— constitutes an exemplary form of democratic political mobilization. Once the denunciation was made publicly, the hope was that the victimizer would find it difficult to leave his house for fear of social censure. Given that the state had failed to send these wrongdoers to prison, H.I.J.O.S. symbolically imprisoned them in their own houses—an alternative means of vindicating their indignation. Second, these rituals also aimed to shake the conscience of apathetic Argentine onlookers and rally citizens’ support in the effort to unmask and ostracize the hundreds of assassins living free and satisfying lives under the protection of the amnesty laws and Menem’s pardon. Denouncing the normalization of impunity, such rituals expressed a call for redress: moral, legal, and political. In Shklar’s terms, the escraches constituted an invitation to become indignant, to form that democratically appropriate and democracy-enhancing emotion that signals all is not well in the political world. The passing of time did not diminish the strength of the relatives’ call for justice. The struggle was anchored in the emotions of the victims’ relatives, which would not allow resignation to settle in. In this way, survivors, relatives, and human rights groups sent a signal of alarm about the legitimacy deficits the Argentine democracy suffered from. The judiciary eventually took up the issues that the victims’ associations had been fighting for. In view of the public’s increasingly vocifer-

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ous reactions to the persistence of impunity, a few federal judges courageously decided it was high time to deal with a past that blemished the Argentine democracy. The legal loophole that allowed for the first breakthrough in the fight against impunity was the fact that neither the amnesty laws nor Menem’s pardon covered crimes committed against babies. After several failed attempts to find the truth about the disappeared in the late 1990s,103 progress came with the prosecution of cases dealing with the theft of babies from victims of torture. The military had systematically taken prisoners’ children away from them, changed the children’s identities, and handed them for adoption by childless families among their ranks.104 Once the widespread and systematic practice of stealing babies was uncovered, prosecutions of officers who had been formerly pardoned by president Menem began. Between 1998 and 1999 a number of high-profile officers were indicted. The Federal Court of Appeals upheld the indictments on appeal.105 Pressure from the relatives of the disappeared, among whom grandmothers of the stolen babies were most prominent, increased by the day. It was during the investigation of a case of a kidnapped couple and their baby that one of the most important court decisions for the fate of justice in Argentina was handed down. On March 6, 2001, Federal Judge Gabriel Cavallo of the Buenos Aires Federal Court of Appeal ruled that the Full Stop and Due Obedience laws were unconstitutional. An amicus curiae brief had been submitted by the Center for Legal and Social Studies on behalf of the Grandmothers of the Disappeared.106 The two amnesty laws were found to be in conflict with Articles 29 and 118 of the Constitution as well as with international and regional human rights documents. Article 29 of the Constitution prohibited Parliament from granting the executive powers that put the “life, honour, and fortunes of Argentines at the mercy of whatever government or person.”107 With respect to Chapter 118, Judge Cavallo explained how the crimes committed by the junta were serious enough to be considered “crimes against humanity” and, as such, subject to universal jurisdiction and not covered by any statute of limitations. According to an amendment to the Argentine Constitution dating from 1994, international law took precedence over domestic law without having been incorporated into domestic law through legislation. As such, it was international law that enabled prosecution of the

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hideous crimes committed during the military rule.108 A precedent of Argentina’s extradition of a Nazi criminal to Germany for trial was also cited in order to strengthen the argument from within the country’s own jurisprudence. The Due Obedience law was analyzed and found problematic because it was in tension with the values of the Argentine constitutional democracy. The law’s premise—that orders could not have been resisted by the lower ranks—raised initial doubts. Moreover, its protections did not cover crimes such as theft of property and concealment of babies. This led to the paradoxical result that theft could potentially be prosecuted, while torture and mass killings could not, since the latter were covered by the amnesty. For all these reasons, and against the background of an increasing social demand for criminal justice, Judge Cavallo decided to restart the struggle against impunity in Argentina. Other federal judges, who reached similar conclusions in the cases they presided over, soon joined him. In 2003, in response to this judicial initiative and public mobilization, the parliament passed a law invalidating the amnesty protections.109 Two subsequent national prosecutors also affirmed the unconstitutionality of the laws. In order for the repudiation of the law to become valid, however, the sanction of the Supreme Court was needed.110 The Supreme’s Court’s invalidation of the law was delayed until 2005. In its ruling,111 the highest court of the nation made reference to international and regional human rights documents that had priority over domestic legislation, and to the precedent set by the Peruvian Barrios Altos case decided by the Inter-American Court of Human Rights. As we will amply discuss in the next chapter, in this case the Peruvian state had been held responsible for the passing of amnesty laws covering massive human rights violations at the hands of its agents.112 The Supreme Court noted that the Argentine impunity laws were similarly ad hoc and violated the state’s internationally sanctioned duty to prosecute.113 The actions of the military had violated the human being in her humanity and had been carried out by state agents in the exercise of their functions. As such, they qualified for the status of “crimes against humanity,” crimes recognized by international law at the time when the Argentine atrocities were committed. Consequently, wrote the court, there was no viola-

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tion of the retroactivity requirement of nulla poena sine lege.114 The repealing of the amnesty laws marked the beginning of prosecutions, and soon the courts were busy trying officers for various violations of human rights. There are a few elements that make the Argentine case interesting for this project. First, it is important to see how, given the fragile equilibrium of forces in the immediate aftermath of the transition, democratic reformers had to settle, initially, for limited retributive justice measures and were eventually forced to postpone the quest for rectification. The prosecutions of the military leaders in 1985 can be read as having had an important motivational impact for the victims’ ensuing struggle against impunity. Transitional justice was postponed, but it could not be done away with, given the emotional anchoring of the claims for redress. Which brings us to the second point: the emotional mobilization of the victim’s families and of other civil society forces points to the motivational force of a violated sense of injustice— as well as its expressive power—in an imperfectly just democracy. It highlights the communicative role they can play politically when they target legitimacy deficits. Of the two cases examined in this chapter, Argentina displays the highest level of political and legal mobilization by the victims and their families. It illustrates the value of politically relevant emotions theorized in the first part of this book. The display of emotions—grief, anger, indignation, resentment—successfully brought home the lesson that the past was an important part of a country’s future and could not be ignored. Third, once the political conditions changed, the state in general and the judiciary in particular were in a better position to recognize the legitimacy of the societal cry for justice, and they duly acted in order to correct past wrongs. Looking back and realizing the importance of addressing crimes committed by the state’s agents, Judge Cavallo decided that it was time to end structural impunity and recognize victims and their families’ moral expectations by treating them with due respect and concern. It was time for victimizers to be removed from the safe haven the amnesty laws had provided. In particular, it was high time to deliver a lesson about principles to the self-satisfied victimizers and the anesthetized public. The judge’s decision signaled that the unconstitutional laws—which relegated some to the status of second-order citizens whose rights had been subordinated

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to stability—made Argentina a lesser democracy. It showed torturers that they could not continue to shamelessly parade their crimes for the sake of a sensationalism-seeking press. The other federal courts and the Parliament followed Cavallo’s exemplary, ingenious judgment and demonstrated that they too understood the significance of justice processes for the quality of democracy in Argentina. Ultimately, the highest court of the country upheld the judgment of the lower tribunals in a gesture confirming the idea that a democratic regime can, at worst, postpone, but never deny justice to its citizens. The judiciary’s acknowledgment of public anger shook the public out of its complicity, made visible the problematic moral mire in which the country had been immersed for years, and leveled the playfield by assuring the much needed second-order enfranchisement for victims and their families. It pedagogically addressed the wider public of bystanders and beneficiaries of injustice for whom the past was an uncomfortable reality, best forgotten. It highlighted the perverse effect of the amnesty laws, which reversed the hierarchy of crimes: kidnappings were punished, while political extermination was not. The internationalization of transitional justice concerns clearly contributed their part to this process by making documents and precedents available to the domestic courts. A number of prosecutions of high-ranking military officers have been successfully initiated and completed since 2005. To conclude, the public emotional barometers of injustice proved their usefulness in the correction of democratic deficits. Moreover, building on the work of groups that had come together in response to the injustices of the past, organizations concerned with the injustices of the present took shape and began to put sustained pressure on the government, thus further contributing to the health of the Argentine democracy.115

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Ena b l in g E m o ti o n a l R e spons ibil it y II Criminal Trials in Democratic Transitions It is comforting to watch the trials afterwards. After the bombs and the machetes. After the war of brother against brother and neighbor against neighbor. After the torn bodies and the burnt out villages. After the faces of grief and the faces of those who are so beyond grief they cannot speak and they cannot cry. After the children blown up or hacked to death. After the rubble and the fires. After all of this and too much more, so much more than anybody should be expected to witness, let alone live, yes, it is comforting to hear about, see from time to time, the trial of the man, some of the men, held responsible for any one of these outrages against humanity. Comforting to watch the accusations, the evidence, the witnesses. Justice is being done, punishment will be meted out, a balance has been redressed to a universe gone mad. I am one of those who has been consoled and moved by those exemplary rituals of the law during which violators of human rights are forced to accept and obey the rules, the very civilized behavior, they have so pitilessly flouted. I have been among those who proclaim how urgent and necessary such proceedings are for the wellbeing of our wounded humanity. Important for the victims, instructive for the victimizers, healthy for the community that was damaged, and deeply satisfying for those who watched from far away and could do nothing to stop the horror. —Ariel Dorfman, “Foreword,” My Neighbor, My Enemy

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The previous chapter has marked the first step in the attempt to deal with the second programmatic question of this book, that of distributing transitional justice. It offered some theoretical insight into what it means to say that courts should contribute to the cause of democratization by reviewing bills aimed at regulating the distribution of corrective measures. It also provided two examples of how courts have reviewed transitional bills under strenuous emotional circumstances and how emotional claims for redress by mobilized survivors and victims’ families pushed for justice. It is now time to turn to the other venue through which the nonelective judicial branch can further the cause of democratization: criminal trials of perpetrators. This chapter will first provide a theoretical framework for analyzing penal law’s potential contribution to emotional socialization. Next, it will illustrate empirically how judges deciding criminal trials have been faced with emotional claims. One exemplary judgment and one botched trial highlight both the opportunities and the risks associated with processes of dealing with the past. There is a large body of research on criminal trials of abusers within the transitional justice literature. Arguments for and against the use of trials as a distributive alternative to a TRC have been broadly circulated in the Truth versus Justice debate.1 In the 1990s the divisiveness of trials was opposed to the reconciliation potential of pseudolegal fora such as truth commissions. Once the dilemma between truth telling and justice mechanisms had been overcome with the formulation of the “division of labor” thesis,2 scholars refined their analysis of what it is that criminal trials can contribute to democracy, in spite of their limitations.3 The traditional purposes of criminal law, deterrence, and retribution were supplemented with—and sometimes even replaced by—other goals: raising legal awareness by institutionalizing and moderating the desire for revenge,4 protecting democratic values,5 transforming the collective consciousness of a people,6 sending the message that impunity had to give way to accountability,7 giving victims a sense of security and satisfaction,8 reestablishing the credibility of the judiciary at home and abroad,9 and shaping memory and processes of remembering.10 The didactic dimension of trials also received special attention. Whether contributing to the construction of a historical narrative,11 encouraging respect for the rule of law,12 or cultivating demo-

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cratic solidarity,13 trials have been proposed as important opportunities for legal educators. It is within this body of literature that I would like to locate my contribution. Predictably by now, this chapter will try to refine the understanding of these trials’ pedagogy by disclosing one more dimension of the circumstances of justice in transition: the potential for exemplary judicial decisions to render their addressees’ resentment and indignation democratically appropriate. I analyze, in turns, the pedagogical functions that Judith Shklar, Lawrence Douglas, and Mark Osiel ascribe to criminal trials in the aftermath of atrocity. The choice of these authors is determined by the emblematic contributions they made to the theorization of the didactic function of penal law: they have provided us with the most complex engagements with the educational dimension of postconflict criminal trials. Through a constructive, yet critical dialogue with their views, I delineate a judgment-based account of criminal trials, an account that takes emotions seriously. However, I argue that there are two limitations to their understanding of transitional trials. First, I critically discuss their conceptualization of the relationship between pedagogy and legality. I present the three accounts on transitional criminal trials on a continuum whose extremes are occupied, at one end, by positions conceiving of the relationship between legality and pedagogy as a zero-sum game and, at the other, by authors claiming that it is inadmissible to trade off legality for pedagogy. By “legality” I mean the procedural rights of the defendants as legal expressions of democratic equal concern. It is these procedural rights that usually get sacrificed for the purpose of teaching lessons through the law. I argue that preserving these safeguards implicitly affirms the normative integrity of democracy and communicates a didactical message to enraged populations. Legality need not and must not be sacrificed for the sake of pedagogy. While not sufficient on their own, only principled responses to oppression can have pedagogical effects beneficial for democracy. Second, the three authors undertheorize the objects of law’s pedagogy: who is it that trials are supposed to educate? Transitional periods are usually marked by heightened emotional mobilization against the perpetrators of abuses. While resentment and indignation repre-

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sent legitimate reactions to the experience of injustice, how they get expressed publicly makes for a proper subject of institutional concern. In order for democracy to flourish, institutions require that citizens’ politically relevant sentiments not be manifested abusively. I argue that exemplary judgments can contribute to the emotional socialization of a democracy’s citizens by filtering their emotional reactions through the strainer of democratic values. Pedagogy need not be restricted to the teaching of foundational narratives. Fair decisions can also inspire the development of an inclusive sense of justice—directly, by the victims and victimizers, and indirectly, by bystanders and the wider citizenry. Running trials in a way that respects procedural norms is crucial when victimhood is contested and showing equal concern to all can potentially catalyze the emergence of a democratic emotional culture. By provoking an outraged public to reflect on the judgments underlying their resentment and indignation, courts should channel these reactions in ways that make them compatible with core democratic values. “Legal Didactics: Doing Justice to the Representation of Atrocity” engages Lawrence Douglas’s “narrative jurisprudence” approach to criminal trials in order to see what his narrative account of law in transition has to offer for our project. Next I address Judith Shklar’s critique of legalism’s limited, instrumental value in the wake of violence (“The Instrumentality of Legalism”). I then discuss Mark Osiel’s theory of the relationship between criminal trials of victimizers and the development of “discursive solidarity” within a polity (“Criminal Trials and Legal Pedagogy: Toward Democratic Solidarity”). The critical engagement with these three authors paves the way for my own contribution to theorizing the relationship between criminal law and democratic transitions (“Reflective Judgment in Context II: Transitional Justice and Criminal Trials”). My overall purpose in this chapter is to enrich the existing literature on the educational function of penal law by, first, problematizing the relationship between legality and pedagogy and, second, by proposing the public expression of emotion is an important variable that criminal trials must take into account in the wake of violence and oppression. Two illuminating illustrations of what it means to try victimizers under conditions of strong emotional mobilization close the chapter: the trials of Nicolae Ceauߜescu in Romania in 1989 and of Alberto Fujimori in Peru in 2009.

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LEGAL DIDACTICS: DOING JUSTICE TO THE REPRESENTATION OF ATROCITY Lawrence Douglas’s book The Memory of Judgment: Making Law and History in the Trials of the Holocaust looks at the didactical function of the Holocaust trials. Douglas’s main concern is with the didactic function of representing the event of the Holocaust in legal form: did the trial manage to do justice to the horror of the genocide in a way that instructed its audience? His interest lies in the pedagogy of truth, of revealing sobering historical facts through the medium of penal law. From the point of view of narrative jurisprudence—the view of jurisprudence he embraces—a complex understanding of law is necessary in order to grasp how criminal trials function as rituals that both produce and suppress various stories in the aftermath of unprecedented atrocities. In order to support this theoretical point, the author examines the didactic use of evidence at Nuremberg and victim testimony in the Eichmann trial.14 His main goal is to explain how these trials struggled to “show the world the facts of astonishing crimes and to demonstrate the power of law to reintroduce order in a space evacuated of legal and moral sense.”15 Douglas’s analysis of Nuremberg focuses on the use of film, documentary, and material evidence for the purposes of writing the history of an unprecedented atrocity. Due to a strong concern with the legitimacy of the proceedings, the court’s actors opted for a rigorous following of procedure. Framing charges in line with existing international documents, avoiding victims’ testimonies, and replacing them with documentaries were strategies meant to fend off potential accusations of victors’ justice.16 Because of these choices, the trial became a tedious spectacle, marked only by sporadic dramatic episodes. Douglas claims that the pedagogical effect Nuremberg could have had was thus sacrificed for the sake of procedural rigor. Eichmann’s trial, on the other hand, did better in terms of representing the event of the Holocaust. The prosecution wanted to tell the tale of heroic Jewish resistance to the young Israeli generation by means of unconstrained testimonies by numerous victims. A lot of attention was paid to survivors and their feelings in an attempt to balance the disproportionate procedural protections for the defendant. Historical instruction and the normative reconstruction of the nation were prose-

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cutor Gideon Hausner’s main objectives. As these objectives were pursued through the medium of the penal trial, Douglas claims that the proceedings successfully “stretched” the law in order to understand and commemorate traumatic history.17 In a very short treatment of the conception of law he embraces, Douglas writes, “for rule-based formalism, questions of narrative are extralegal, while narrative jurisprudence, by insisting that rules fail to exhaust the universe of what counts as law, insists on a more capacious understanding of the legal.”18 Therefore, making sense of the didactic contribution of the Eichmann trial requires that we incorporate what would otherwise be considered extralegal variables into a more flexible perspective regarding the law’s functions. From the point of view of narrative jurisprudence, Eichmann’s trial managed to present an accurate and disturbing story only by virtue of transforming the role that law can play in the wake of violence. It movingly chronicled the extermination of European Jewry and, in rebelling against formalism, “reached the hearts of men.”19 However, legality was not entirely forsaken, as the prosecution’s efforts were tempered by vigilant judges. The court shared Nuremberg’s concerns with the legitimacy of proceedings. Given that the trial was being held on Israeli territory on the basis of a law passed in 1950, i.e., retroactively, and that the defendant had been seized in violation of the territorial principle of jurisdiction, the court struggled to preserve legality by providing a counterweight to the accusers’ strategies. Thus they made a sustained effort to filter testimonies through the strainer of relevance to the case under consideration. Given the prosecution’s nation-building project, Hausner did not select testimonies solely with a view to demonstrating culpability. Consequently, he put the judges in the uncomfortable position of having to police the survivors’ testimonies when they did not bear on the crimes of the accused. Douglas sees the court’s intervening to limit witnesses’ testimonies to what was relevant for Eichmann’s particular case as a necessary measure for securing procedural legitimacy for the proceedings. By way of supplementing Douglas’s account, I argue that, while Hausner did his best to teach history and redeem the victims before a new generation of Israeli citizens, the court was busy affirming the limits that equal respect places on the pedagogical uses of the law. More specifically, while the prosecution focused on doing justice to the event of the Holocaust, the judges could be seen as trying to do justice to individ-

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uals by including under the scope of the sense of justice not only the survivors but also a defendant whose culpability had otherwise never been in doubt. Moral outrage in the wake of the Holocaust could not be denied voice, yet it had to target a particular victimizer, who could be legally proven responsible for suffering. Selecting testimonies that had nothing to do with Eichmann’s contribution to the Holocaust violated the principle of equal concern for all persons. Not all stories and not all feelings, no matter how legitimate per se, can have standing in front of the court. The criterion of relevance places a limit on what can be admitted in a particular criminal trial. A message about the value of equal respect for everyone, irrespective of their past, had to be communicated to the Israeli nation and to the world community. This is why, to ensure the legitimacy of the proceedings, the judges filtered the testimonies and “policed” the prosecution’s narrative efforts. Their commitment to procedure also served another kind of pedagogy that Douglas did not take into consideration precisely because of the way in which he opposed legality to historical narrative building. The judges’ disqualifying unrelated stories was a way of teaching a lesson about how democracies deal with victimizers. Even if we agreed with Douglas that rules do not exhaust the realm of law, we need not agree that historical lessons exhaust the realm of legal pedagogy. From his analysis of the Nuremberg and Eichmann proceedings, it is clear that Douglas does not see legality as serving the cause of pedagogy. For him, pedagogy is concerned solely with historical truth and national redemption narratives. By adopting this position, Douglas remains blind to the lessons of procedural justice and their potential impact on the culture of respect for all. While legality cannot, on its own, ensure democratic exemplarity, it is one of its preconditions. This brings us to this chapter’s second dimension of analysis, the subjects of legal didactics. While Douglas clearly appreciates the prosecutor’s efforts to offer young Israelis a substantive narrative and some nation-building narratives, he is not sensitive to the ways in which procedural rigor could have educated the political dispositions of Israeli citizens, victims, and witnesses, old and young. There is no room in his account for the judges’ pedagogy targeting the development of democratic attitudes of equal respect and concern for all in the wider society. When he writes that the testimonies in Jerusalem “moved the hearts of man,” he does not refer to an education of the attitudes and sentiments

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of the public, but to the spectators’ emotional reactions at learning about the extent and nature of atrocity. One could say that Douglas was also concerned with the education of attitudes and sentiments, those of attachment to a certain kind of national identity, that Hausner tried to construct. But we could also claim that the court’s effort to ensure that the defendant would not be easily used for extralegal purposes was another way of talking to “the hearts of men”: legality was meant to show the limits of what can, and should, be done in the name of otherwise legitimate moral outrage against the defendant. Given the immensity of the harm in question, the moral debates surrounding the procedures, and the prosecution’s inflammatory orations, it would be difficult to believe that the judges actually had an important pedagogical influence over “the hearts of men.” Nevertheless, we cannot overlook the fact that, in exercising historical reflective judgment, the court opted for a defense of legality as the best possible strategy for publicly communicating the limits democracy places on both public emotional expressions and pedagogical uses of the law. Toward the end of his analysis of the Eichmann trial, Douglas writes, “This is not to suggest that the court’s defense of formalism was misplaced; on the contrary, it was only because of the struggle between the court and the prosecution that the trial could succeed both as law formally conceived and as a didactic event.”20 These concluding statements clearly indicate that there is no room for pedagogical legality for Douglas; legality and pedagogy must be traded off against one another. On his account, the concern with procedural rigor at Nuremberg and Jerusalem did not constitute a didactical move, but only a legitimizing strategy. I argue, however, that the didactic function of law gains in complexity by exploring not only the substantive, historical messages that constitute foundational myths for the trial’s audiences but also the kind of political and emotional socialization that legality can contribute to. As we shall see later on, it is this subtler yet crucial contribution that legal pedagogy can bring to the development of democratic attitudes.

THE INSTRUMENTALITY OF LEGALISM Having examined Douglas’s account of the relationship between legality and didactics, it is time now to take one more step toward the center

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of the spectrum I laid out earlier. Judith Shklar’s classic book Legalism: Law, Morals, and Political Trials acknowledges legality’s pedagogical merits, but only to a certain extent. Her main aim is to discuss political trials, both domestic and international, in order to reveal the severe shortcomings of legalistic ideologies. Legalism is, at the same time, an ethical attitude, a code of conduct, a social ethos, and a political ideology, according to Shklar. Its main presuppositions are, first, that moral conduct is a matter of rule following and, second, that moral relationships consist of duties and rights determined by rules. Two dichotomies are cherished by legalism’s proponents: between law and morals and between law and politics.21 These two dichotomies, Shklar thinks, make legalism inappropriate for an age of diversity. With regard to the first dichotomy—between law and morals—legalism, in both its positivist and Natural Law versions, cannot account for the role of law within pluralistic social environments. On the one hand, positivism artificially separates law from morals and treats each as an isolated block. Such a stark opposition between the two is misleading. A more accurate picture of the relationship between law and morals emerges when we recognize that some societies endorse legalistic values to a greater extent than others.22 Natural Law legalism, on the other hand, presupposes a strong normative agreement, unattainable under the current conditions of diversity. Its emphasis on an ahistorical moral certainty can allow for repression of dissenters, something unacceptable within a pluralistic democratic society. Legalism’s second dogmatic separation, that between law and politics, makes it incapable of recognizing law’s great creative force and the kind of social functions it could perform at all times, but especially during radical transformative moments. Ignorance of, or disinterest in, law’s social consequences obscures law’s contribution.23 Nowhere are legalism’s limits more obvious than in the handling of political criminal trials. Shklar writes: “There is no situation in which these ideological habits of legalism are more openly confronted by competing policies than in the course of political trials. Both in accepting and in rejecting political trials legalism strives valiantly to distinguish itself from ‘mere’ politics, even such politics as might well serve the future development of legal institutions and values.”24 Instead of emphasizing the insulation of law from “dirty” politics, it

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would be better to ask, What sort of politics can law maintain and reflect? Trials can serve all sorts of politics, liberal and illiberal, legalistic or nonlegalistic, and the theorist must not work with the illusion that law can be politically neutral. Once we acknowledge that trials in the aftermath of large-scale violence cannot escape politics,25 we can also understand the need to consider the future political goals that law can achieve. Neither Natural Law theory nor positivism can help in this sense. Shklar uses the Tokyo and the Nuremberg trials as examples to show how both variations of legalism have failed to achieve the goods they could have achieved for the Japanese and German nations had courts assumed the clearly political role they can play. The Natural Law arguments introduced in the Tokyo trials did nothing but outrage Asian publics with their “narrowness, ethical dogmatism, and historical emptiness of the ideology of agreement.”26 Such arguments did not make any sense outside the Western liberal environment in which they had historically developed. As for positivism, had the prosecutors at Nuremberg understood the educational impact that the trial could have had on the immediate future of Germany, they would not have based their case on the legal fiction of an existing international system of law and would not have gone to such lengths to use entrenched categories that clearly misrepresented the case at hand.27 Such rigid strategies undermined the positive contribution that legalism could have made to political change in Germany, if only its constraints had been relaxed. The trial’s actors were too concerned with a vaguely defined “grand” future of the “Law,” instead of thinking of the German people’s immediate future. Law’s potential social role was thus severely diminished by legalism’s insistence on a clear separation between law and politics. To the extent that Nuremberg’s obsession with formalism had any impact on the democratic socialization of the German people, it was on Germany’s professional and bureaucratic classes, already educated within a legalist tradition. It was they who could understand the jargon and to whom evidence was presented in a way that made denial impossible. The impact on the wider sectors of the German population, if any, was very limited, according to Shklar. Prior education into legalistic virtues conditioned receptivity to the lessons of Nuremberg. Had concerns with precedent been relaxed, had “crimes against humanity” been used as a prosecutorial category, the truth of the novelty of Nazi

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crimes would have resonated with the broader German population.28 The legalist’s safe use of “crimes of aggressive war” did not transmit any didactic message and, what is more, opened the way for tu quoque arguments to be raised against the allies. Shklar’s understanding of the didactic function of trials can thus be summarized as follows: to the extent that a political trial respects the rigors of legalism, it can teach legalist virtues, but only to those who have already been socialized to respect such virtues, i.e., the legal and bureaucratic classes. In order to socialize the wider public for a future of decency, procedural constraints must be loosened. Since the only justificatory goal of the great trials was a broader pedagogical reach, strict legality should have been sacrificed. This brings me to my first objection to Shklar’s conceptualization of the relationship between legality and pedagogy. She seems to believe that success in teaching historical lessons depends on the audience’s familiarity with the ways in which the lessons are taught. Unlike Douglas, she sees instrumental value in legalism’s capacity to communicate historical truths to certain sections of the public. The political and legal classes of Germany learned the lessons about the horror of the Holocaust because the stories were told in a language they could understand. This seems to be the only merit that the concern with strict rules of evidence and legal determination can have in terms of contributing to the political socialization of a trial’s audience, in her view. In response to Shklar, I argue that it was constitutional democratic politics that lay behind Nuremberg’s preoccupation with precedent and reliance on existing legal documents in the international arena. The judges’ worries about their own legitimacy, about the credibility of criminal proceedings, and about communicating that even the worst perpetrators of atrocity must be given voice and representation meant that they intended to send a didactic message to the world community. Democratic politics requires that only those judicial decisions that display equal respect for all, including both victimizers and victims, are permissible. Only by respecting principled constraints can they also aspire to potentially have an educational influence on the attitudes of their addressees. The very fact that procedurally appropriate proceedings were initiated—instead of summary executions—was intended to affirm that constitutional democracies deal differently with the defeated. In this sense the world community was the target of a pedagogical

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effort to show the limits democratic justice sets even for the victors in war.29 The concern with legality does not have a merely instrumental function in the transmitting of didactical messages to lawyers and bureaucrats: it constitutes a lesson in itself. As for legalists’ ignorance of social and political implications, to claim that the prosecution and judges at Nuremberg were blind to the practical ramifications of their choices is to misrepresent their self-understanding as historical actors within unprecedented circumstances.30 Aware of the impact of such proceedings on world history, the actors at Nuremberg reflectively judged that the reproduction and affirmation of liberal democratic equality required excessive attention to procedural rigor. Shklar sometimes hints that there is something commendable about legalism’s value for a polity. She seems to believe that there is a relationship between legalism and the level of “decency” of a society and between legalism and personal freedom.31 She also writes, though in vague terms, that legalism is compatible with the worst oppressive politics, though not “in its most extreme form.”32 These statements are left undertheorized, however. What is missing is an articulation of the fact that legalism’s “obsession” with procedural protection for both the defendant and the victims is the reflection of a guiding principle of legal and political judgment within constitutional democracies: the principle of equal concern and respect for all. And though excesses of proceduralism sometimes lead to absurd results, courts dealing with massive violence and oppression prefer to err on the side of being too rigid for fear of failing to show discontinuity between liberal democratic politics and the abusive practices of the past. Before raising my second objection to Shklar’s account, I want to respond to a potential criticism about this book’s embracing a romanticized reading of Nuremberg as an apolitical exemplary trial.33 The reason I discuss Nuremberg at all is that it is the undeniable reference point when thinking about the pedagogical potential of postconflict trials. I do not see Nuremberg as a model for “correct” transitional trials. Transitional trials are indeed political, yet there are two meanings of the term that we need to distinguish. First, a political trial reflects a certain political ideology. In this sense, I argue that Nuremberg’s concern with documenting atrocity and providing defendants with a set of procedural protections reflected constitutional democratic views. There was

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a strong link between the Allies’ ideological commitments and their running of the trial. Second, a political trial is an instrumentalization of the law for the sake of eliminating political adversaries, and this is naturally in tension with liberal democratic norms. The Stalinist great purge of the late 1930s is one good example, and, no matter how critical we are of Nuremberg, the two cases are not comparable. This is not to say that the Allies at Nuremberg were exclusively motivated by noble principles. It would be a mistake to believe no strategic reasons entered their calculations and that their respect for legality was “pure.”34 Yet these strategic aims did not collapse the trial into a political one in the second sense delineated, i.e., victors’ injustice. A healthy dose of realism should prevent us from idealizing the proceedings at Nuremberg, but, at the same time, appreciating its merits.35 The second point I want to raise in response to Shklar’s account refers to her understanding of the kind of impact trials can have on broader audiences. When talking about society at large as addressees of the court, Shklar sees the trial’s influence simply in terms of preventing a generalized bloodbath. The proceedings against the Nazi war criminals removed justice from private forces and placed it in the hands of the law: “The Trial fulfilled an immediate function. . . . It replaced private, uncontrolled vengeance with a measured process of fixing guilt in each case, and taking the power to punish out of the hands of those directly injured. . . . The only consequence of officially doing nothing would have been to invite a perfect bloodbath, with all its dynamic possibilities for anarchy and conflict on an already disoriented continent.36 The terms in which Shklar describes this accomplishment of the Nuremberg prosecution reveals that she does not see the prudential avoidance of unleashed vengeance as part of the pedagogical function of the trials. She claims that the trial was a “containment” of vengeance, a suppression of “passions.” There is nothing to be recuperated from these “passions”; they had to be done away with in order to prevent the bloodshed. While Shklar’s claim that trials prevent further violence is correct, her conception of vindictive passions misrepresents the circumstances of justice in the wake of violence and leads to a reductionist understanding of the trial’s resonance. I argue that the trial sought to prevent further violence by sending a message about what can be justifiably done in the name of otherwise legitimate public resentment and indignation. Shklar’s treatment of

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passions does not do justice to the judgments underlying the emotional responses that emerge in response to injustice and atrocity. Negative emotional reactions to the suffering associated with largescale violence were more than legitimate. What the court tried to communicate was that the lynching and extralegal executions of suspected collaborators and the shearing of women after the liberation were not appropriate emotional expressions from the point of view of liberal-democratic justice.37 Instead, resentment and indignation should target the real, not the imagined, victimizers; they should not motivate actions that undermine the very normative foundation of democracy, i.e., the value of equal respect and concern for all. When left unfiltered institutionally under circumstances of high mobilization, they had led to continued violence. The court’s concern with procedural protections could be read as aiming to inspire audiences to reflect on the kind of emotional expressions democracies allow. They also sought to avoid giving the Nazi leaders any good reasons to be resentful.38 By giving even the most terrible abusers a voice, and the benefit of legal protections, the actors at Nuremberg hoped to make defendants understand the gravity of their deeds and discouraged their resentment at being indicted. Simultaneously, they made sure procedure was followed, and miscarriages of justice avoided, so that criminals could have no reason to be resentful. While this desirable effect is contingent, fair procedures clearly mark discontinuity with the past of arbitrariness. Shklar’s conceptualization of the role of criminal law as containing and suppressing “vindictive passions” prevents her from seeing the subtler pedagogical implications of Nuremberg’s opting for strict procedural constraints.39 While the aridity of the judgment at Nuremberg could have been couched in more inspiring language, the court’s choices are perfectly understandable under the circumstances.

CRIMINAL TRIALS AND LEGAL PEDAGOGY: TOWARD DEMOCRATIC SOLIDARITY Mark Osiel occupies the last position on our spectrum, and he dedicates his book Mass Atrocity, Collective Memory, and the Law to offering an alternative to the Durkheimian account of the relationship between criminal law and social solidarity in the aftermath of “admin-

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istrative atrocity.” The term administrative atrocity refers to “large scale violation of basic human rights to life and liberty by the central state in a systematic and organized fashion, often against its own citizens, generally in a climate of war—civil or international, real or imagined.”40 State-sponsored atrocity poses specific problems for the new elites, working without the support of a democratic political culture. It is Osiel’s contention that criminal trials of perpetrators can contribute to the beneficial development of a modicum of social trust and solidarity within deeply divided societies. In contrast to Durkheim’s account of legal proceedings conceived as drawing on a societal normative consensus and solidarity,41 Osiel proposes a thin understanding of solidarity, one reduced to an endorsement of equal respect for different points of view. The great number of competing versions of the past that usually characterize postoppression polities make Durkheim’s account implausible for such contexts. By stimulating public discussion about the meaning of violence, however, criminal trials can promote democratic virtues: toleration, mutual respect, and habits of reflection. 42 Civility in the management of conflict can be encouraged by means of the rules of criminal procedure and responsibility in the legal profession. In times of contested victimhood, these rules impose on participants a minimal agreement on how to disagree. The actual experience of being part of adversarial proceedings would also contribute to the development of “discursive solidarity”—an increasing acceptance of differing with the others—as would a certain level of self-conscious dramaturgy by prosecutors and judges (22–23). Unlike Douglas and Shklar, Osiel argues that legality need not be sacrificed for the sake of pedagogy. It is only by conducting trials in a manner that both provides a public spectacle and preserves legality that courts can help shape the political culture of a young democracy. There need not be a tension between legality and pedagogy because “liberal show-trials are ones self-consciously designed to show the merits of liberal morality and to do so in ways consistent with its very requirements” (65, emphasis added). It is by cultivating and rewarding the virtues of mutual respect, self-reflection, and toleration that trials can contribute to normative and social change. Stimulating the disposition to respect the moral rights of others is the main objective of institutional political socialization—and this requires that legality not be sacrificed, as it is the very norms of criminal procedure that can

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inspire a respect for civility in a trial’s audience. Only by observing the defendants’ and victims’ rights in an exemplary fashion can such proceedings resonate with both parties to a conflict when competing claims to victimhood tear at the social fabric. Osiel is aware that the pedagogical use of trials is likely to distort history. He acknowledges that one might conceive of such proceedings as caught between too perspectives: one that is too narrow, that of a simplifying formalism, and one that is too wide, giving in too much to historical narrative building to the detriment of legality. But these risks should not lead us to discard pedagogy as a goal of transitional trials—quite the contrary. Law should use the stories that come before it to persuade its audience of the merits of civility and respectful attitudes. Living up to the principle of equal respect also requires that this be done without silencing alternative narratives, for a commitment to constitutional democracy requires giving voice to all. Most interestingly, Osiel envisages criminal trials in the aftermath of administrative massacre being conducted as a kind of theater of ideas. While the prosecution will evidently choose the style of an accusatory moral drama, and the defense that of a tragedy, he thinks judges should encourage competition between alternative narratives seeking to persuade the audience. Only if all voices are included can there be a fair deliberation about who counts as a legitimate victim and who does not. The contested character of victimhood is a permanent feature of transitional processes. Courts must provide a safe space where alternative narratives are presented and assessed. Victims should not have a monopoly over the past. A societywide debate about the meaning of the past and its repercussions into the present would prevent the slide into an obsessive backward looking. The courts’ role is precisely to stimulate a discussion about how prominently the past should figure in the polity’s self-understanding. It is Osiel’s optimistic view that, through inclusive proceedings, legitimate narratives will win the day. But can Osiel’s account ensure reconciliation beyond discursive solidarity? Osiel is skeptical of hopes of reconciliation and proposes something else instead: by forcing unpleasant topics onto the public agenda, trials can induce moral self-scrutiny among citizens and the emergent elite, even if they often fail to stimulate such processes for perpetrators and their sympathizers (175). The question the legal profession must ask itself is not “How can trials achieve reconciliation?”

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but “How can the criminal law be most effectively deployed, through the dramaturgical choices of prosecutors and judges to foster national self-searching of this sort—to stimulate the deliberative criticism of a society’s political culture and institutions by its members?” (176). And, for this purpose, a plurality of voices needs to be included with a view to problematizing the very contours of victimhood. In the language of political judgment, courts should offer exemplary—legally correct and politically inspiring—judgments that can invite citizens to reflect critically on their own relationship to a past of violence. The success of the deliberate efforts to stimulate public debate that observes the norm of equal respect is contingent on a multitude of variables; however, courts attempting to influence social attitudes must take into consideration some strategic decisions with a view to increasing the proceedings’ didactical value. But what exactly does that mean? Such political goals can only be achieved if judges treated transitional cases as “hard cases.” Ample room should be given to historical perspectives on violence and storytelling to allow legal opponents to furnish their competing visions of the past. While legality should not be sacrificed for the sake of pedagogy, a certain kind of rigid positivistic formalism is disqualified as an approach to criminal proceedings in the aftermath of administrative atrocity: extensive discussion of the principles that underlie the judicial process is necessary in times of political division when people disagree about what justice requires. Because societies in the wake of violent oppression are polarized over the past, because attitudes of civil respect and concern for all are not present within such contexts, and because courts can contribute to the development of a democratic political culture, a strict formalist approach cannot be the answer. Ample space in the courtroom should be given to explaining why, while all stories need to be heard, only some claims are democratically appropriate. This does not mean that courts will have to relax procedural protections or that some agents’ interests will be subordinated to the common good of developing deliberative attitudes. The principle of equal respect is what judges seek to communicate to the citizens of a young democracy. Violating this principle during the court’s proceedings will not serve Osiel’s socialization ambitions. What is needed, though, is more room for telling alternative stories about the past, in the hope

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that wider public debates will take their cue from the conversations taking place in court. “Slam-dunk” sentencing, even in cases where guilt is beyond doubt, will not achieve much by way of stimulating a culture of democratic civility. Of the three approaches reviewed here, Osiel’s is best equipped to see both the more and less subtle ways in which transitional trials can serve the purpose of political socialization. His account does not require sacrificing defendants’ procedural rights in the course of transmitting educational messages. On the contrary, the very nature of the educational message—the encouragement of reflective, dialogical attitudes within the citizenry (as opposed to the sanctioning of one particular version of the past)—requires that procedural protections be in place. As institutional implications of the principle of equal concern for all, procedural constraints ensure that all voices get representation. However, he is aware that legality, while absolutely necessary, is not sufficient to lend decisions the inspirational quality they need to effect attitudinal change. It is the most persuasive story—or, in my framework, the exemplary, most inspiring judgment—that wins the day in the theater of ideas. It is now clear that Osiel’s theorized purposes of legal pedagogy converge with the purposes I have put forth for transitional justice mechanisms. His support for the role that nonelective institutions can play in democratization efforts falls in line with the main arguments of this book. His theorization of criminal trials as theaters of ideas leaves ample room for imaginative reflective judgments that can have an inspiring effect on their publics. In mobilizing local sources to effectively defend the merits of democratic principles, courts can help kick-start cultural political transformations. I find his account wanting, however, in terms of its take on the circumstances of justice in transition: because of a lack of attention to the emotional mobilization surrounding such trials, he is not aware of all the obstacles that efforts to build discursive solidarity might face. It should not be assumed that the parties involved in these trials, and its broader audience, will be naturally receptive to the lessons the court is preparing to teach. There is one more obstacle that Osiel needs to overcome, that is, the emotional mobilization by victims and society at large against the former oppressors. Victimizers’ resentment and their supporters’ indignation at transitional justice processes also escape the scope of his account.

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Before it can hope to stimulate democratic respect, the judiciary must first face such challenges. The next section of this chapter will build on Osiel’s work and provide an account of what trials can do to constructively engage negative public emotions so as to serve the cause of democratic principles.

REFLECTIVE JUDGMENT IN CONTEXT II: TRANSITIONAL JUSTICE AND CRIMINAL TRIALS While Osiel correctly characterizes the social context within which transitional justice mechanisms function as one that is divided between alternative versions of the past, he does not see that these divisions are especially deep because of their emotional anchorage. In this section I take Osiel’s argument one step further in an attempt to develop a theory of legal didactics for postoppression contexts. Like judicial review decisions, exemplary criminal trials judgments can, by following the guidance of democratic principles, also help stretch a violated sense of justice to cover all members of the political community. The theory of legal adjudication embraced in this book owes a great debt to Dworkin’s “law as integrity.” I supplemented Dworkin’s pathbreaking contribution, however, with a more robust account of legal judgment, one that sees judges’ reflective decisions as oriented yet not determined by the political principles of a polity and that takes both the giving and the receiving of decisions into account.43 Just as the judicial review of transitional justice bills, criminal trials must affirm equal concern and respect for all members of the polity, irrespective of their pretransition life histories. The requirement of principled integrity holds across various branches of law. Yet, as I argued earlier, principles do not offer formulae for legal actors to follow. Principles guide judgment, but do not determine it. How courts interpret the law in order to ensure the consistency of its principles— and implicitly acknowledge the legitimacy of resentment and indignation—varies from one society to the other, from one legal tradition to the other, from one transition to the other. Imagining the criminal trials of perpetrators as a theater of ideas maps onto a concern with the inspiring, didactic role they can play. Good reflective judgments within such proceedings can inspire citizens to

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adopt democratically appropriate attitudes. Careful observance of procedural constraints, inclusiveness, a good knowledge of the audience and of the circumstances of the trial, the proper use of the rhetorical register, and good timing and imaginative staging, all these constitute preconditions for an exemplary decision. Such a decision could at the same time successfully recognize the validity of reactive negative emotions and communicate the limits that a commitment to democracy imposes on their public expression in a way that woos citizens to follow in judgment. More concretely, this requires courts to publicly enunciate and discuss the principles on which the court runs its proceedings. Justifying prosecutorial decisions every step of the way is another requirement of treating everyone, including the defendant, with equal concern and respect. Enabling the emergence of a multitude of perspectives in the trial is crucial to filtering legitimate from illegitimate claims. Keeping victims informed about their role in the proceedings, as well as the schedule and aims of the proceedings, and providing them with assistance and counseling before, during, and after the trial are guidelines that the victims’ movement promote for all criminal trials and make particular sense for contexts of atrocity.44 At the same time, provoking reflection through exemplary, first-order judgment is crucial, as good decisions can inspire citizens to reflect upon what they should do in the name of their moral outrage. While there is no unique blueprint about how that can be done, with Robert Solomon, this chapter maintains that “the point of law is to make the passions more coherent, more consistent, more articulate, more perspicacious, more reasonable, more subject to scrutiny, more scrutinised.”45 Beyond these general ideas about how to foster respect for all by respectfully staging criminal proceedings, judges and prosecutors within transitional contexts will have to make decisions while taking into account a host of political, social, and institutional variables. The efficacy of this message depends on its qualities as well as on the collaboration of other institutions, the transparency of the decision making, the observance of the publicity requirement, exposure in the media, and public responsiveness to judicial arguments. Most likely, these variables will limit the kind of impact law might otherwise have on the course of democratization. In addition, a nonromantic view of the judicial branch should make us cautious of the judges’ motivations. Strategic concerns will be among the factors that influence the

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courts’ position. Yet, on its own, the presence of such concerns does not undermine the validity of the pedagogical effort. To conclude, a careful analysis of the emotional dimension of transitional justice influences the way in which we conceive of didactical legality. We are thus drawing closer to having answered the second programmatic question enunciated at the beginning, How should we distribute transitional justice? In this last section of chapter 4, we look at two criminal trials of perpetrators that were run under the pressure of public anger. I first discuss the trial of Alberto Fujimori for political killings and kidnappings committed during his rule over Peru. Last, but not least, the facade trial of dictator Nicolae Ceauߜescu on Christmas Day 1989 makes the object of the fourth subsection of this chapter. While Fujimori’s trial exemplifies the strategies this book has been recommending in view of cultivating a sense of democratic civility in torn societies, the show trial of the Romanian dictator vented negative emotions without filtering them through strainer of legality.

Peru At 11:30 pm on November 3, 1991, six armed men, faces covered, crashed a party held at 840 Jirón Huanta in the Barrios Altos district of Lima, Peru. The guests, who had gathered to collect funds for the renovation of the building, were ordered to lie on the floor. The armed men then started shooting indiscriminately at them, killing fifteen on the spot and seriously injuring four. The killers left in a hurry in two vehicles equipped with sirens. The police and judicial investigation that followed established that the armed men were members of the La Colina death squadron, which belonged to the Peruvian army. La Colina was in charge of carrying out an antiterrorist program that targeted the members of the communist movement Sendero Luminoso. Since 1980, the movement had been trying to take over political power and establish a Maoist regime by violent means. The guests at the party were suspected of being terrorists belonging to the revolutionary group. A subsequent parliamentary inquiry into the event was quickly canceled due to a coup organized by President Alberto Fujimori with the help of the military. The legislature was dissolved on April

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5, 1992. Yet the survivors and their families continuously pressed for an investigation. In 1995 a new inquiry into the Barrios Altos events was again blocked, this time by the military courts. Soon enough, President Alberto Fujimori promulgated an amnesty law covering all crimes committed between 1980 and 1995, thus preventing any further inquest into the massacre.46 The judges’ refusal to apply this law—on grounds that it was unconstitutional—was curbed by the passing of yet another bill, making it impossible for any judge to review the constitutionality of the amnesty law.47 Thus impunity was consolidated. The only choice left to the relatives and their supporters in human rights organizations was to appeal to the Inter-American Commission for Human Rights.48 Nongovernmental organizations working with the victims and their families filed petitions with the commission in 1996. A continuous exchange of documents between the state and these groups was mediated by the commission between 1996 and 2000. The commission recommended that Peru nullify the amnesty laws and initiate proceedings against the Barrios Altos murderers. The state riposted that the amnesty laws were exceptionally necessary in the struggle against communist terrorism. Faced with such resistance, in May 2000 the commission submitted the case to the Inter-American Court for Human Rights. During the public hearings that followed, the court declared the amnesty laws incompatible with the American Convention of Human Rights. In addition, it recommended that the state protect the right to truth and provide reparations for the relatives of the victims.49 But the quest for justice did not end there. Following an important corruption scandal involving his intelligence chief, Vladimiro Montesinos, Fujimori left for Japan and gave up the presidency.50 The new government established a Truth and Reconciliation Commission to provide information about the conflict between the Maoist groups and the Peruvian state. On August 28, 2003, the final report of the commission was presented to the president of the republic in a solemn atmosphere. It documented the death of almost seventy thousand people and condemned both sides for the violent conflict that had lasted from 1980 to 2000.51 The report stated that atrocities had been committed by the Sendero Luminoso and the Tupac Amaru communist groups, but also by the state’s repressive structures through their antisubversion programs.52

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In 2005 former president Fujimori decided to go back to Peru and try to place a bid for power. He landed in Chile and hoped to launch his comeback from there. The indignant families of victims and representatives of the Peruvian human rights groups made numerous trips to Chile and publicly denounced his plans.53 At the end of a long and stressful negotiation process between Peru and Chile, Fujimori was eventually arrested and extradited to Peru for trial. Beside the crimes at the Barrios Altos party, Fujimori was also charged with the abductions and disappearances at the La Cantuta University in 1992 as well as the kidnapping of a businessman and of a Spanish journalist.54 The trial lasted sixteen months and was hailed as an exemplar of procedural correctness and legal rigor.55On April 7, 2009, almost six years after the report of the truth commission and eighteen years after the murders in Barrios Altos, the special criminal chamber of the Supreme Court sentenced the former president to twenty-five years in prison and the payment of compensation to twenty-nine victims of human rights violations. The court found Fujimori guilty of being the moral author of twenty-five murders, the assault of four persons, and the kidnapping of two journalists. The armed forces under his command were the direct perpetrators of the crimes. The victims were declared completely innocent.56 Legality was duly served: the court ensured that all procedural protections were given to the defendant. Fujimori had many opportunities to speak and defend himself. The judges showed a concern with the state of his health and paused the proceedings when it appeared that he was experiencing medical problems. The charges were tailored in such a way as to avoid accusations of scapegoatism and revanchism: kidnapping, homicide, and aggravated battery. Unlike “crimes against humanity,” these were all codified in Peru’s Criminal Code at the time of the repression. In this way, problems of retroactivity were avoided: while the violations amounted to crimes against humanity, the charges were formulated in the language of the existing laws of Peru. The text of the decision was a long and detailed account, showing great concern with observance of the principles of the rule of law. Many pages of the decision were dedicated to the justification of the doctrine of responsibility that the trial was based on: autoria mediata.57 The judges outlined the work of the German jurist Claus Roxin, the main theorist of this doctrine. They argued that, although Fujimori

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did not commit the crimes himself, he was the author thereof by virtue of the fact that he commanded a structure whose members were willing to commit the crimes on his behalf: The Court establishes that the defendant, in his status as holder of the highest position of the State, of the National Defense System in particular, and as the Commander in Chief of the Armed Forces, abused his position of authority by creating an organized apparatus of power based on the SINA’s central and derivative units, which included the commission of the offenses of murder and grievous bodily harm in Barrios Altos and La Cantuta, in the context of the fight against subversion. Those crimes, in addition to the unlawful acts conducted in the basement of the SIE, were carried out by the COLINA group, which was hierarchically subordinate to the organized apparatus of power under the control and will of the defendant.58

The message the court wanted to communicate by using this doctrine was that Fujimori’s responsibility was a matter of authorship and not merely one of instigation or complicity. Most important, the doctrine matched the court’s explanation why it would have been impossible to produce written orders as evidence of the authorship of the defendant. Given the clandestine and illegal nature of the antisubversive unit La Colina, “The respective orders and instructions, in the specific context of the case in question—for acts such as forced disappearances, arbitrary or extrajudicial executions, grievous bodily harm and kidnappings—are not drawn up in laws, and it is certainly very unlikely that they would be set out in writing or through another administrative mechanism typical of the modus operandi of an administrative or governmental entity” (685). Relying on the jurisprudence of the European Court of Human Rights, the court added that the pattern of violations went on without the state interfering to stop them, which proves that the officials refused to take appropriate measures in spite of their being aware of the repressive acts (686). The doctrine of responsibility outlined, important passages dealt with the presentation of the evidence that identified Fujimori as the moral author of the crimes. At the time of the trial, Peru had in place a system of “free evidence,” i.e. a system in which “no special or exclusive type of evidence is required to prove a particular fact” (686). A multi-

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tude of sources could be used, provided they were lawfully obtained. Newspapers articles, testimonies by victims and experts, official transcripts of parliamentary debates, army and intelligence manuals, official letters and radio messages, speeches by army generals, declassified documents from the U.S. State Department about its concern over the human rights violations sponsored by the Peruvian state, the decisions by the Inter-American Court of Human Rights in the Barrios Altos and La Cantuta cases, the Peruvian Constitutional Court’s decision annulling the amnesty laws meant to protect La Colina, intelligence reports from the Ministry of Interior, official letters of congratulations to counterintelligence officers, the report of the Truth and Reconciliation Commission, reports by Amnesty International and the Inter-American Commission for Human Rights: all these documents were used to reveal the political and institutional support that the illegal activities of La Colina enjoyed under Fujimori (690–722). A minutiose discussion of each and every one of these sources was meant to dispel any suspicion regarding the correct nature of the trial and to invite its varied audiences to reflect on the plausibility of their claims and emotional reactions. Next, still driven by the desire to strengthen the credibility of the trial, the judges engaged all the objections the defense raised against the evidence presented by the prosecution: each of these objections was rigorously examined and answered comprehensively in the decision (723–35). Sources that contradicted the findings of the Truth and Reconciliation Commission were carefully evaluated and, upon due consideration, dismissed on account of their internal contradictions. The court also put on the hat of the historian and outlined the chronology of events, from Fujimori’s election as president of Peru to his coup d’état and the repressive measures that followed (beginning with 739). Special attention was paid to the documents that founded and regulated the functioning of the repressive structures within the state. The military powers of the president were discussed in great detail in order to ascribe authorship to him of the crimes in Barrios Altos and La Cantuta. His command over the intelligence structures of the Peruvian state was outlined and the crucial role played by Vladimiro Monstesinos was described at length (747). The processes and decisions that led to the formation of La Colina featured prominently in the story (754). Moreover, a set of extrajudicial executions

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and forced disappearances at the hands of the La Colina officers were enumerated for the public record and forcefully condemned (758– 59). The events in Barrios Altos and La Cantuta were retold in detail, naming the direct killers and those under whose patronage they were operating (762–74). In both cases, “Fujimori’s knowledge . . . can also be inferred, concurrently, from what took place after the events. . . . The defendant himself . . . publicly approved tax and criminal persecution . . . without ordering the appropriate investigative, disciplinary and criminal measures, and justified implicitly what happened to (the victim), and approved the arbitrary persecutions that the State implemented under his leadership” (777). In an attempt to mark discontinuity with the abuses of the past, the judges explained the importance of fundamental civil rights and condemned their violation during the Fujimori’s presidency. Several categories of crimes were didactically distinguished, and the court explained which ones applied to the Barrios Altos and La Cantuta cases, and which not. Building on the jurisprudence of the International Criminal Tribunal and the InterAmerican Court of Human Rights, the judges answered the question of whether the crimes under consideration constituted “crimes against humanity” in the affirmative: The murders and grievous bodily harm committed in the cases of Barrios Altos and La Cantuta are also crimes against humanity, fundamentally, because they were committed within the framework of a state policy of selective but systematic elimination of alleged members of subversive groups. This policy, on one hand, was designed, planned and controlled at the highest levels of state power, and carried out by state agents—members of military intelligence—who used the military apparatus to do so; in addition, in accordance with their objectives, it affected a significant number of defenseless members of the civilian population. (801–2)

We can therefore see that the detailed historical exposé was meant to support the connection the judges wanted to establish between Fujimori and the crimes and to reinforce the findings of the Truth Commission. Yet teaching historical lessons was not the court’s only worry: the judges clearly enunciated the limits that legality set on the

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making of historical narratives and affirmed the value of human rights publicly. They ensured that all procedural protections for the defendant were respected; they devoted ample time and effort to substantiating the case against him, mobilized wide jurisprudential sources to support the doctrine of authorship they used, examined an impressive quantity of evidence, and dialogically engaged with the objections by the defense. The victims were given voice and their suffering was acknowledged throughout the proceedings. After long years of silence and struggle within and beyond Peru’s border, Felipe León León, Natividad Cóndor Cahuana, Gustavo Gorriti, and Samuel Dyer Ampudia, among others, told the story of their suffering and of the protracted legal battles that followed. Publicly establishing the truth of repression satisfied the victims’ desire for recognition and, most important, distinguished documentable harms from the absurd narrative presented by Fujimori and his supporters. To the extent that we can speak of legal didactics in Peru, they were most likely directed at the Fujimoristas—the family and supporters of the deposed leader—who expressed their indignation at the trial and engaged in all sorts of provocations during the proceedings. Throughout the entire trial the latter launched insults, calling the survivors “ignorant,” “terrorists,” and “profiteers.” They expressed indignation at the fact that the “savior of the nation” was on trial and repeatedly disrupted the proceedings, claiming “all terrorists should be killed.”59 They tried to provoke the relatives of the victims in the hope that they would react in a manner that would get them removed from the courtroom. In response, the relatives asked to authorities not to allow insults and provocations in the courtroom and pleaded with the security personnel to intervene and stop verbal aggression. The attitude of the victims is well captured in an essay by the sister of one of the Cantuta victims, Carolina Huamán Oyague: So many sentiments converge within me during these times; sadness and impotence left by the malevolence of mankind, the absence that will never be filled. But there is also happiness and solidarity found in the gestures and expressions of beings who are incapable of being indifferent with their neighbors, who could not help but feel indignant, who were in that way our strength and a sign to keep going forward in

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the fight for justice, no longer just for our family members, but for all of the Cantutas that today are represented in this one trial.60

Carolina’s struggle for justice benefited from the support of those who could not but feel indignant at the massacres. Resentment and indignation, but also solidarity, fueled the struggle for justice through the years. The mother of a journalist assassinated by Fujimori’s henchmen emblematically summarized their perspective: “Y no señores, no queremos que Fujimori muera lo que queremos es simplemente justicia.” (“And no, dear sirs, we do not want Fujimori to die, what we want is simply justice.”)61 The decision gave great satisfaction to the victims whose ordeal finally came to an end. “For the first time, the memory of our relatives is dignified in a ruling that says none of the victims was linked to any terrorist group,” said Gisela Ortiz, the sister of one of the victims in the Barrios Altos case.62 Francisco Soberon, the leader of a human rights group that led the campaign to bring Fujimori to trial, declared to the press, “They couldn’t shut us up. . . . Our objective is to achieve full justice, remembrance and reparations.”63 Ronald Gamara Herrera, another human rights activist deeply involved with the case, declared that “there has not been hate, or revenge, or cruelty in Fujimori’s trial. What there has been is justice. Period. We are not happy for the pain of a man, nor of what tragedy his family is going through. But yes it is comforting to know that justice has been served and that the victims, after so many years, can rest in peace.”64 Finally, after a strenuous and sustained effort to obtain equal respect, the innocence of the victims and the suffering of their relatives had been publicly acknowledged, while Fujimoristas were invited to reflect on the merits of their arguments and the democratic appropriateness of their resentment and indignation. The twin pitfalls of revenge and tokenism were thus successfully avoided in Peru. The Peruvian case exemplifies how the requirements of legality and pedagogy can be balanced under circumstances of emotional mobilization within a divided society. The concern with the quality of evidence, the elaborate justification of the doctrine of responsibility, the ample opportunity that both the defendant and the survivors had to express their positions, and the historical exposé of the facts were meant to eschew accusations of “victor’s justice” and engage the supporters of

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the deposed leader in a process of reflection on the past. Fujimoristas’ anger was shown to be unfounded, and this all due to the court’s tireless and rigorous efforts to preserve legality. While not everyone was persuaded, and some remained angry,65 the procedural correctness of the trial, the quality of the evidence, the imaginative mobilization of both historical and jurisprudential sources, and the care for the defendant’s rights gave the decision its exemplary character.

Romania We are the People, down with the tyrant! Death to the murderer! —Anticommunist slogans, Bucharest (December 1989)

Between 1965 and 1989, Romania was dominated by one of the most oppressive communist regimes in Eastern Europe: Nicolae Ceauߜescu’s “sultanism” or “personal neo-Stalinism.”66 The grip of the party-state over society was one of the strongest in Eastern Europe. The members of the secret police, the infamous Securitate, annihilated dissidents and disabled the resistance to the dictator’s megalomaniac plans for forced collectivization, urbanization, and total state control of the economy.67 His project of paying Romania’s entire international debt to achieve national economic autonomy was realized in the summer of 1989, at the cost of a humiliating rationing of all consumer goods, food, utilities, and petrol for the population.68 A nationalistically motivated demographic policy made abortion illegal in the 1960s and led to a high mortality rate for women undergoing illegal and unsafe abortions.69 The extermination of between five hundred thousand and two million political resisters, the destruction of the cultural patrimony, and the extraordinary cult of personality were dimensions of a regime that refused to reform even when the communist block around it had collapsed.70 At the first signs of public unrest in December 1989, Ceauşescu ordered the armed forces and the Securitate to suppress street demonstrations by the desperate, outraged citizenry demanding the death of the tyrant and the end of the communism regime. A peaceful, negotiated roundtable was not an option in Romania. Between one hundred and one thousand people were killed and many more were

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wounded. While the Securitate forces supposedly continued to fight for their commander and shoot at the population, the military leadership quietly sided with a newly formed organization that soon took power in the vacuum left by the flight of the dictator on December 22. The National Salvation Front (FSN) was made up of former top communist apparatchiks who had had conflicts with Ceauşescu and had been consequently marginalized in the last years of the regime. They took advantage of the popular movement to legitimize themselves as leaders of the revolution and take control of the country.71 Caught unprepared in the whirlpool of events, the authentic dissidents, mostly intellectuals and figures from the Romanian cultural scene, had no experience and no organizational capacity to match the Front’s advantage. Street fighting continued until the December 27 and destroyed many landmark buildings in the center of the capital and in the city of Timişoara. As it became apparent later, many deaths were the result of shooting by both sides in a generalized climate of fear, rumors, and confusion. Sometime between December 22 and 25, 1989, Ceauşescu and his wife—the second most powerful official of the regime—were caught, arrested, summarily tried by a military tribunal, and executed under dubious circumstances. The video recording of the trial and execution was broadcast on national television on December 25. The declared rationale for showing the tape was that, seeing their leader dead, the secret police would stop shooting at the demonstrators. International disapproval and condemnation of the masquerade trial ensued. While secrecy surrounded the whole affair, the execution did not initially find many critics in a society starved, frustrated, and traumatized by years under authoritarian rule. The accumulated hatred against the dictator and his family led ordinary citizens to welcome his death with street celebrations. But the way in which Romania dealt with its past in the immediate aftermath of the political shift was to leave a great negative imprint on the political culture of the democracy that eventually emerged from the ashes of the Stalinist experiment. This section will analyze the trial and try to show how it failed to serve as an exemplary instantiation of democratic values. What had been a genuine popular revolt was quickly transformed into a quasi coup that brought to power former communist leaders, aided by the military.72 By blaming everything on Ceauşescu, the latter hoped

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to prevent a comprehensive, lucid analysis of the oppressive system to which they had themselves belonged. A veil of secrecy continues to protect a state permeated by former henchmen of the totalitarian regime. There are good reasons to believe that because they were left unsatisfactorily addressed, public resentment and indignation were reproduced over time and contributed to the development of civil society pathologies: disillusionment, apathy, and a lack of trust in political institutions. Nicolae and Elena Ceauşescu were arrested and submitted to a trial by an extraordinary military tribunal at an army base in December 1989. The trial was organized by Ceauşescu’s own defense minister, General Victor Atanasie Stƴnculescu. In collaboration with the FSN,73 the general set up the court and ordered military magistrates to try the dictator and his wife. The trial lasted less than an hour and violated almost all procedural rules. Transcripts reveal that the prosecution, judge, and lawyers all accused the couple, who repeatedly refused to recognize the legitimacy of the court and its proceedings.74 The trial began with an incoherent introduction by the chief judge, who indignantly denounced the starvation to which the Romanian people had been subjected while the privileged few indulged in luxury: The defendant has for 24 years refused to enter a dialogue with the people, although he has been speaking for the people all the while, as “the most beloved son of the people.” With disdain he humiliated this people. Today he does not want to cooperate with this tribunal. The facts are known. His holidays were marked by true feasts, where the defendants were accompanied by their clique . . . wearing the most expensive clothes, that kings of all times could not afford, so much luxury . . . while the people were entitled to 200 grams of salami, distributed on the basis of their ID card! The genocide committed by the defendants, their robbery of the people. . . . He has arrogated the right to speak for the people. But today he does not want to speak, he is a coward in all senses of the term!75

The tirade over, the judge then allowed the prosecution to outline the charges. The charges were based on the Romanian penal code of the time, and they were made up of the following: genocide committed during the public revolt, the undermining of state power and the

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armed attack on the state’s institutions, the organization of diversions with a view to the destruction of industrial installations, and the undermining of the national economy. Legal continuity with the previous regime was affirmed by the court’s use of the existing law, the principle of nonretroactivity thus protected. Ceauߞescu refused to acknowledge the charges. The judge began by accusing the couple of shamelessly, and with impunity, using the state’s structures for their own interest. Enraged, he went on a second, incoherent tirade about the enforced impoverishment of the Romanian people, moving on to the sixty-four thousand people76 who had supposedly died in the repression of the street demonstrations in Bucharest and Timiߞoara and the exile of the intelligentsia: The judge: The situation is well known, the disastrous situation of this country is known, not only by us, but by every honest citizen of this country that has been simmering with anger till the 22nd of December 1989, the dawn of liberty. We all know the situation, the lack of medicine, which led to many deaths, of adults and children, in hospitals with no medicine, no heating, no light, did you ever think about it? I am talking to you, defendant Ceauߞecu Nicolae! Who ordered the genocide in Timiߞoara? The defendant refuses to respond! The defendant: I will only respond in front of the National Assembly. The judge: Change this old CD, we’ve listened to it before and we know how stubborn you can be!77 The defense lawyer—provided by the state—argued against the position adopted by his clients: he explained why the proceedings were legitimate and legal. As president, Ceauߞescu could only be held accountable by the national legislative assembly (MAN); however, since he had lost his office as a result of the “sovereign will of the people,” he was to be tried like any other ordinary citizen. In response to their own lawyer’s position, the couple insisted they were the victims of a conspiracy and that they would only give an account of their deeds in front of the MAN.

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Further enraged by their response, the judge moved on to accuse the couple of the destruction of the Romanian peasantry through enforced urbanization plans and to compare,78 once again, the poverty of ordinary citizens with the luxurious style of the clan: The judge: Why, defendant, did you take measures to humiliate the people, to degrade and debase it so severely, why did you export all the products of the peasants’ labor? . . . Why did you starve the people, why, why did you starve the people?79 The prosecution then raised questions about secret bank accounts in Switzerland, where the money obtained through exploitation of the country had supposedly been deposited. At that point, Elena Ceauߞescu demanded that evidence be presented to support these accusations. In an ironic voice, the judge promised that evidence would be made available, while the prosecutor made insulting remarks about the defendants’ mental health. The sarcastic and angry tone was preserved when the topic of Elena Ceauߞescu’s fabricated scientific career was broached. The magistrates moved from one issue to another without a clear plan or structure. The judge repeatedly demanded to know who was responsible for the street killings. Another recurring theme was the generalized starvation, the most direct frustration Romanians had to endure in the last years of the dictatorship. All lawyers, including the defense lawyer, vehemently voiced their disapprobation and anger at the defendants and the repressive state apparatus: The prosecutor: Your honor, if this paranoid defendant has no bank account, let us settle our accounts with him, because we do not seem to be able to communicate. The judge (to Elena Ceauߞescu): You don’t know anything about the genocide either? It must be because you were always thinking of your scientific research! Of your polymers! Who published your work abroad? Nicolae Ceauߞescu: There are tens of scientific articles published abroad, on polymers. The judge: Who wrote them??? . . . Ahhhh, you are quiet now!80

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Tired of the fact that the trial was going nowhere, the prosecutor asked for the death penalty and the total expropriation of the couple. In response, the defense lawyers reiterated the grounds of the legality of the trial, claiming that they were doing the couple a favor by defending a tyrant who, in his full mental capacity, had committed atrocities against his own people. The defense then declared that they thought the defendant was culpable of all charges. Another tirade followed. The lawyers expressed their indignation at the lack of medicine in hospitals, the surveillance by the Securitate, the coup that brought the communists to power in 1947, and the deaths of the young demonstrators over the past few days. When the defendant tried to speak, the defense lawyer pleaded with the judge: “Your Honor, allowing him to speak amounts to an insult to the Romanian people and the Romanian judiciary!”81 Ironically, the last remark by the defense was to ask the judge not to allow the trial to degenerate into a vendetta. After a short period of deliberation, the court pronounced the sentence: death penalty and total expropriation. The lawyers tried to enter into a dialogue with the two defendants with a view to appealing the decision, but Ceauߞescu again refused to recognize the tribunal. As a consequence, the lawyer declared that by not recognizing the court the Ceauߞescus had lost the right to appeal. Insults were thrown at them on the way to the place of the execution. They were immediately shot, under extremely tense and stressful circumstances.82 Declarations by the soldiers who participated in the execution show the anger that moved them to empty the cartridges of their automated machine guns. One soldier who had not participated in the execution asked for permission to shoot at the corpses. On Christmas night, 1989, Romanians watched the death of the dictator and his wife on their television screens. By blaming everything on the couple, the new leaders of the country strategically ensured the impunity of the communist apparatus and its agents. Since 1989, every Christmas season, television channels rebroadcast the tape, hold roundtables, show documentaries, and interview participants, all in an effort to find out what really happened. Who engaged in the street shootings? Who was behind the trial? As years went by and the truth did not come out clearly, the public speculated, formulated conspiracy theories, sank into cynicism, and developed a total lack of trust in the state institutions.83 The impunity associated with commu-

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nist repression was replaced with the impunity of a postcommunist, dubiously democratic regime of uncertainty and suspicion. As a result, an apathetic, bitter, and distrustful civil society failed to exercise its key function of holding the endemically corrupt government accountable. The trial had nothing to recommend it as an exemplary event in democratic justice. It took place in an ad hoc military tribunal, but the law referred to during the proceedings was the civil criminal code valid at the time. No evidence whatsoever was presented, there were no testimonies by witnesses or victims, and all magistrates, including the defense and the judge, acted as prosecutors. The proceedings were marked by long and virulent condemnatory speeches, loaded with rhetoric and sometimes incoherent due to the emotionally charged atmosphere. The resentment and indignation of the military toward the defendants, from the judge to the soldiers who executed the couple, is clearly evident in the transcript and the video recording. While legitimate, given the atrocities that had been committed and ordered by the defendants, the unrestrained resentment and indignation experienced by the legal team were not appropriately expressed in a court of law aiming to end a regime of arbitrariness and move toward democracy and freedom. In all its features the trial represented a judicial abuse and failed to communicate any didactic lesson to the equally enraged population. By unreflectively playing their part in the game that General Stĉnculescu and the Front had planned, the magistrates helped divert Romania from the democratic direction in which it had been going in the early days of the popular revolt. The supreme commander of the country had been eliminated and the multitude of the victims of his regime remained voiceless, while the system and its successors were still almost fully in place and continued to rule until 1996,84 when the liberal-democratic opposition finally won the parliamentary and presidential elections. It was only in 1997, after the first peaceful power transition between the forces of the old (FSN) and the forces of the new (the Democratic Convention), that the national prosecutor started to investigate General Stƴnculescu for his role in the 1989 events. In 2000 a court found him guilty of aggravated murder and sentenced him to fifteen years’ imprisonment. Despite this, with economic disaster plaguing the liberal-democratic mandate, Romanians voted for the return to power of the Front’s successor party in 2000. Consequently, a special

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appeal procedure was introduced to prolong the proceedings against the general and ensure the impunity of his acts. In 2007, one year after the elections that brought the liberal democrats back to power, the initial sentence was reconfirmed.85 After serving five years in prison he was released on parole in 2014. The dominance of the Front’s successor party over the Romanian political landscape after 1989 delayed a sober engagement with the past until 2007, when a commission of experts under the aegis of the president formulated a 666-page report on communist and postcommunist repression in Romania.86 The report contains scientifically documented information and a set of recommendations for a holistic transitional justice project involving legal accountability, civic education, lustration, and memorials for the victims. However, the public debate around the document was highly polarized.87 It took nineteen years and the end of the reign of the communist successor party for the country to begin its reckoning with a painful and lingering past. The hope was that, by finally giving victims their due recognition and respect, the Romanian democracy would live up to its principles and shake the political apathy and public resentment that have been plaguing its public sphere for almost two decades. In 2013 the national research institute in charge of the report regarding communist crimes started a campaign to bring to justice torturers and criminals who operated for the state between 1945 and 1989. Several inquiries and one trial were initiated by the national attorney. It remains to be seen whether, and toward what goals, the fragile experiment in memory and justice will continue.

Conclusions

The cases investigated in this book—situated on a spectrum ranging from democratically appropriate to democratically catastrophic expressions of public emotions—illustrate the ways in which the emotional atmosphere of adjudication can affect the task of the judges and highlight the institutional need to seriously engage with negative emotions. We can see that, both in reviewing legislation and deciding trials, courts’ strategies were heavily dependent on the political context, on their own level of legitimacy, the nature of the former regime, the level of mobilization in civil society, the type of actors involved, and the level of political survival of the former elites. It is crucial to remember that some of the courts examined here were under-resourced, inexperienced, understaffed, or staffed with “tainted” personnel. They needed to establish their authority in relation to the other branches of government, under the pressure of heightened public expectations. In addition, their striving for international recognition placed an extra limit on the strategies available to them.1 In transitional periods—though not only in such periods—courts cannot act as unconstrained actors.2 Most of the time, judges cannot freely decide to review legislation or preside over trials but must take on this responsibility at the request of other institutional actors who prefer to

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refrain from dealing with such delicate tasks themselves.3 All these factors make judges’ work difficult, but, at the same time, open up opportunities for them to contribute to the cause of democracy in ways that require careful reflective judgment. Key to my analysis is the fact that all four courts had to take stock of the negative emotions that victims, their families, and members of the public brought to the streets and to the courtroom. Three of the courts presented here sought to communicate the demands of the normative integrity of democratic principles, while the fourth failed to do so. In the best-case scenario, judges display a complex understanding of the elements that enter their judgment and formulate clear and persuasive messages as to what democracy allows its citizens to do in the name of their violated sense of justice. But even the most inspiring decisions can fail to persuade everyone, as the Peruvian and the South African case show. By looking back at their experience, I hope to have provided both exemplars of judgment and cautionary tales for societies contemplating an engagement with the past along democratic lines. Among the courts examined in this book, the South African Constitutional Court showed the greatest concern with the emotional dimension of transition. The arguments the judges formulated in upholding the constitutionality of the TRC display both an acute sensitivity to the emotional atmosphere of the transition and a sense of realism as to how difficult it would be to vindicate the public’s outrage through the parliament’s chosen mechanism of transitional justice. Although they did everything they could to woo the support of those who challenged the TRC, their arguments failed to persuade their addressees, whose emotional assessment of the situation remained at odds with the court’s decision. In spite of the court’s laudable, exemplary judgment, the unprecedented institutional experiment that the TRC represented, the principled compromises the commission embodied, and the subsequent failure of criminal courts to follow up on its recommendations disappointed relatives of the victims. Negative emotions reproduced themselves in time and, according to empirical studies, contributed to the development of civil society pathologies. Federal judges in Argentina acted as a transformative force for a fledgling democracy that had been severely stained by a culture of impunity. In contradistinction with the political branches, they dis-

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played political and moral leadership, vindicated victims’ enduring moral anger, and ended the generalied complacency toward the problematic settlement of 1983. Benefiting from the support of well-organized human rights and victims groups, the court provoked the elective institutions and the public at large to reflect on the internal contradictions of their incomplete democracy. In response to the courts’ challenge, the legislature and the highest court of the land nullified the abhorrent laws that had protected violators for too many painful years. Thus Argentine democracy came one step closer to a political reality that corresponded to the guiding principles of equal concern and respect for all citizens. Yet this would not have been possible in the absence of continuous pressure by the families of the disappeared. The corrective force of public resentment and indignation made its contribution to the cause of democracy and continues to do so today in response to injustices unconnected to the transition. Fujimori’s flight abroad and the pervasive uncertainty induced by political manipulation during the revolutionary days of 1989 in Romania have made the judiciary’s task extremely difficult in each of these two trials. As in the case of Argentina, an amnesty protected the perpetrators of violations in Peru. The existence of regional human rights organizations enabled the survivors of the Barrios Altos massacre, the victims of kidnappings, and the families of those disappeared from La Cantuta University to take their struggle to the supranational level when domestic institutions failed to deliver justice and redress. After long years of waiting, justice was served exemplarily. The judges presiding over Fujimori’s trial successfully balanced the imperatives of legality and democratic pedagogy. The decision recognized the suffering of victims and, at the same time, launched an invitation to the public—and in particular to the Fujimoristas—to reflect on how constitutional democracies should treat both victims and victimizers. The resentment and indignation that Fujimori’s family and supporters expressed at the decision provide us with a good opportunity to reflect on inappropriate negative emotions. In denouncing the trial as a political farce, they failed to show respect for the victims. Their angry reactions betrayed a failure of judgment regarding the recognition and redress owed to those brutally eliminated by an abusive regime. Their indignation showed disregard for equal dignity and was, therefore, illegitimate in a constitutional democracy worthy of its name.

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Last but not least, by giving in to their own resentment and indignation against the oppressors, the magistrates presiding over Ceauߜescu’s trial failed on several counts. Procedurally, the trial was a legal nightmare. No evidence was produced. The countless victims remained voiceless, and so did the victimizers. The defense lawyers helped the prosecution, while the judge allowed himself to perorate angrily. The couple was blamed for everything that had gone wrong in the country since 1947, while the system of repression remained mostly unmentioned. Nobody offered constructive messages about the value of the rule of law in a democracy. On the contrary, resentment and indignation were given full rein in court with the most blatant act of scapegoatism. While it would be difficult to say what the court could have done, given deep emotional involvement by everyone in the courtroom, it is equally difficult to ignore the fact that they unreflectively contributed to the hijacking of the country’s first impulse toward democracy. While resentment and indignation against the couple were legitimate, the misidentification of the targets, their uncontrollable intensity, and the actions they motivated fail the test of democratic appropriateness. In this sense, the Romanian case study serves as a cautionary tale about the negative impact that unmediated negative emotion can have on the normative integrity of democratic values. It would be difficult to measure with precision the educational impact legal decisions have had. Such impact is contingent on the courts writing decisions in a way that preserves democratic principles and communicates the constraints of equal respect on political and legal decision making, on the reputation of the court and the collaboration of other institutions, on the transparency of their decision making, on exposure in the media,4 and, finally, on the responsiveness of victims, itself a function of the type of atrocities endured and the duration of the oppression, among other things. To the extent that this book claims that some courts have done a better job than others, “success” is measured in terms of the quality of the message or lesson communicated to victims, victimizers, and society at large and not in terms of their effectiveness in changing people’s emotions. No straightforward causal link is claimed between the courts’ judgments and civil society’s responses. This project simply seeks to illustrate how courts have reflectively—or unreflectively—decided these cases under the pressure of emotional mobilization. The analysis of

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these cases strengthens the idea that successfully delivering the right decision from a democratic point of view implies affirming democratic principles and challenging individuals to reflect on the kind of actions through which they seek vindication. In other words, legality and pedagogy must go hand in hand. Different courts will balance these two imperatives differently, depending on the variables constraining or enabling their judgment. Their common purpose, however, remains the reproduction of democracy as a normative, institutional, and emotional-cultural order. We have thus reached the end of our foray into the functions that transitional justice processes could perform for the emotional dimension of democratizing societies. The principal ambition of this project has been to provide a contribution to a political theory of democratization. The main innovative element of this enterprise is to draw attention to the emotional side of politics during radical transformative periods within the life of a democratic order. Politically relevant emotions have been conceptualized as part of the political culture of a society. In order to reproduce itself normatively and institutionally, democracy needs the support of an emotionally favorable environment. This is rarely the case in the aftermath of massive abuses and violence at the hands of the state. While legitimate, resentment and indignation targeting the agents of oppression can be publicly expressed in ways that endanger both the stability of institutions and the normative integrity of the democratic principles of equal respect and concern for all. Skeptics have seen this as a sufficient reason to turn their back on the past. In response, I argued that transitional justice projects can perform important functions for democracy: they institutionally reaffirm the commitment to democratic equality, legitimize and provide a venue for voicing negative emotions, and pedagogically engage resentment and indignation in an attempt to initiate democratic socialization processes. A constructivist cognitive account of emotion has given substance to this proposal. The excursus into the philosophy and sociology of emotions has shown why negative emotion should not be seen only with suspicion, but rather as potentially beneficial to the reproductive efforts of any normative and institutional order. Through a critical dialogue with the major theories of moral emotions, I have conceptualized the sense of justice as an enduring disposition manifesting itself in neg-

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ative expressions of resentment and indignation under circumstances of injustice, violence, and oppression. As cognitive emotions, i.e., as emotions that presuppose a judgment, they bear normative weight and can serve as barometers of legitimacy deficits. Consequently, constructively engaging with them in a way that takes them seriously and fructifies their beneficial functions is simultaneously a normative and prudential imperative of democracy itself. The possibility that under circumstances of extreme oppression and impunity resentment and indignation might degenerate into political apathy, disillusionment, and other social and political pathologies has also been considered in order strengthen the argument in favor of an institutional concern with the politically relevant emotions. Of the multiple institutions that transitional justice projects can involve, I chose to look into the ways in which the judiciary should recognize and, at the same time, socialize negative expressions of resentment and indignation. A theory of adjudication for democratization has been constructed by supplementing Dworkin’s historically sensitive concept of “law as integrity” with more attention to the complexity of the context within which judicial review takes place and with insights from the philosophy of judgment. Judicial review of transitional justice bills and criminal trials of perpetrators were discussed at length. The book’s contribution to this literature lies in the idea that exemplary judicial decisions—decisions that successfully observe procedural constraints while also mobilizing relevant historical, political, and cultural factors to increase their persuasiveness—can contribute to the cultivation of democratically appropriate emotions. The theoretical framework thus built was used to make sense of various instances of judicial review of transitional justice bills. Through a careful analysis of the different strategies courts have opted for in reviewing postviolence legislation, I have tried to illustrate how the least dangerous branch can issue inspirational judgments that communicate the limits that democracy places on otherwise legitimate negative emotions and provoke the moral powers of the public to reflect about the nature of redress. Case studies of domestic transitional trials were also introduced to exemplify both democratically appropriate and democratically inappropriate judgments. The hope was thus to identify judicial strategies that would challenge citizens to reflect on what they ought to do in the name of their violated sense of justice

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and to prompt us to think in fresh ways about the role of magistrates in transition. Before outlining the greater theoretical implications of this book and the extended research project for which it constitutes only the starting point, I respond to three potential criticisms that one might formulate against the arguments developed here. One might criticize the conservative, state-centered approach that this book has embraced. By looking at the role that the national judiciary can play within wider processes of postoppressive justice, the critic might accuse me of having neglected—and indirectly closed—the possibility of using alternative, traditional, local justice mechanisms. In response I would like to reiterate that this book has not given the national judiciary an exclusive jurisdiction over transitional justice affairs. I chose to closely investigate courts in order to show that even nonelective public institutions can bring their contribution to the cause of democratization. Democracy does not always emerge spontaneously, bottom up, straight from the grassroots. State institutions can stimulate and catalyze the development of a democratic emotional culture. This does not mean that courts are best equipped to distribute corrective measures in view of democratic socialization. As the Argentine and Peruvian case shows, courts took their cue from activists and their organizations. What is more, I subscribe to the “division of labor” thesis and conceive of postconflict justice as a holistic project involving various institutions, agents, and practices.5 I do not see why we should be weary of a legal pluralist approach to transitional justice or of the idea that pseudo- or nonlegal institutions can also help advance democratization. There is a caveat, however. Nonstate, local practices of justice are desirable provided they do not contradict the principles underlying the democratic regime, i.e., to the extent that everyone—victims, victimizers, witnesses, bystanders, beneficiaries, and survivors—is treated with equal respect and concern.6 Related to the criticism I have delineated is another, namely, that I have adopted a narrow, Western, legalistic approach to complex realities that cannot be properly engaged through the medium of the law. This book has sought to avoid adopting a heroic, idealized view of the judiciary within transitional justice processes. The limits of legal justice have been recognized and so has the potentially nonprincipled, merely strategic motivation behind judges’ contribution to democrati-

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zation. The normative prescriptions put forth in chapters 3 and 4 were meant to provide a useful way of rethinking what “the least dangerous branch” of the government should seek to achieve. In these chapters I attempted to go beyond a simplistic, formalist understanding of adjudication and provide a more realistic account of what the law should strive for politically in the wake of violence. By paying attention to the complex political, social, and emotional circumstances of justice in transition, by investigating the role of essentially embedded legal judgments in both decision-making and decision-receiving processes, I hope to have avoided the pitfalls of arrogant abstract trust in the power of the “Law.” The contextual theoretical approach this book has adopted was meant to serve as a safeguard against abstract idealism in the sense that the normative program I set out for judges was informed by familiarity with real-life practices. While some of the courts analyzed have engaged in an exemplary fashion with the problems they were faced with, others failed miserably. There are always lessons to be learned, examples to be followed, and mistakes to be avoided. Last but not least, a critic might point out that there is a need for further theoretical elaboration regarding the compatibility between negative emotion and liberal-democratic principles.7 What does it mean to say that negative emotion should be made compatible with equal concern and respect for all? How could that become possible? What are the steps? Is there a recipe for success against which we can measure practices of emotional engagement? Because of my commitment to the philosophy of judgment as a framework, I tried to stay away from giving “recipes,” “formulae,” or “blueprints” for how to ensure compatibility. The theoretical framework I choose for the analysis of judicial review and political trials limits how far the theorist can go in specifying the process. The philosophical presuppositions embraced here are in tension with an understanding of politics that dictates unique, clearly identifiable democratic solutions to messy moral and political dilemmas. Clear general prescriptions about this delicate task are impossible because of the very particularity within which adjudication takes place. The first implication of this position is that there is no one single way, no tick-box list of steps one could take to ensure the democratic recognition and productive channeling of emotion. I have argued that engaging with political emotions in the wake of violence requires

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careful, localized reflection. This is an essentially political and inescapably contextual process, highly dependent on a multitude of factors that cannot be easily captured in a “recipe,” “formula,” or “blueprint.” Courts need to effectively mobilize the normative, political, and cultural sources of a particular context in an effort to both recognize and channel resentment and indignation—and this can only be achieved from within the concrete political community. The case studies highlight the particularity of reasons and arguments that courts have mobilized, from decisions of regional supranational courts to traditional normative sources to local notions of “civilization.” While there are international standards—both substantial and procedural— that constrain the range of decisions domestic courts can take, the way in which these standards are interpreted and shored up with domestic law and the way in which local cultural, political, and economic considerations are brought to bear on the import of these standards domestically remains essentially contextual—and needs to do so if it is to be effective, i.e., have political resonance. Liberal democratic principles guide us; they do not ahistorically and universally determine the exact steps we need to take in order to constructively engage emotions. The second implication of this philosophical commitment is that there is no clearly specified, universal template against which we can measure the appropriateness of the judgments. The exemplarity of adjudication can only be understood contextually. This does not, however, amount to a relativistic point of view. It only testifies to the plurality of modalities in which democratic principles—themselves the product of historical struggles—can be instantiated practically and evaluated contextually. In terms of accounting for the complexity of the emotional aspect of democratizing polities, the work done in this book is obviously far from sufficient. Feelings of guilt and remorse, pity and mercy could provide excellent material for further research. An investigation into the ways in which hybrid and international criminal courts have attempted to engage their local addressees’ sense of justice would enrich our view of the judiciary’s contribution to democracy and add intercultural insights to the analysis. Issues of collective responsibility have not been discussed here either: the book has exclusively focused on legal mechanisms for individualizing guilt, leaving aside the structural and cultural factors that have enabled individual acts of injustice. Such

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a story is a limited and skewed one, perhaps inevitably so because of this book’s focus on the law as a medium of transitional justice. While legal decisions about the prosecutions of individuals can provoke collective processes of reckoning, this aspect of transition has remained outside the scope of this project and constitutes a fruitful avenue of future research. An overview of other mechanisms of transitional justice and the way in which they could deal with negative emotions also needs to be undertaken. At the same time, a comparison between judicial and non- or pseudojudicial fora could also be enlightening. Empirically, the political transformations covered under the umbrella term Arab Spring provide fresh cases to think constructively about the importance of rage and anger for democratic movements. Last but not least, it would be interesting to see whether insights into the risks and opportunities associated with negative emotions within radical democratic transformations have any bearing on the realities of “consolidated” democracies, themselves undergoing significant and continuous changes in an age of plural citizenship and contested sovereignties. This last observation holds a lot of promise in terms of building on the theoretical findings of this book and developing further directions of research. The Occupy movement, the Indignados, and the rise of Podemos; the virulent public outrage targeting African immigrants in southern Europe; the violent antigovernment street protests in Athens; the emotionally charged events that led to the establishment of the Bouchard-Taylor Commission in Quebec in 2007; the recurring riots in suburban Paris; or the emotional effervescence around EU migration are just a few cases that illustrate the kind of challenges negative public emotions create for mature democracies. Does democracy owe recognition to these emotional reactions? How can we distinguish between appropriate and inappropriate negative emotions? What mechanisms can be used to engage emotion in a way that preserves the normative and institutional integrity of the democratic order? In the age of pluralism, these are questions all democratic societies have to answer. Democracies are perpetually experiencing transformations that push the limits of citizens’ democratic dispositions and of institutions’ representation capacities. Economic crisis, massive migration, minority recognition claims, historical injustices, economic inequalities and hardships, gendered inequities—all constitute solid grounds for negative feelings on the part of the affected groups.

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Dealing with emotionally charged claims is a challenge no democracy can ignore. Through an analysis of the ways in which these emotions have been represented (or misrepresented) in the media or in art, by civil society organizations or by political institutions, we can learn from the past and discover innovative ways of making negative emotions serve the cause of democracy. In this sense a more extended and complex project would aim to contribute to the vast literature on democratization by supplementing it with an account of one of democracy’s rarely explored dimensions: that of politically relevant emotions and the role they can play in times of social, cultural, and political change. By drawing attention to the emotional dimension of politics, such an extended project would seek to propose a nuanced understanding of democratic participation and representation in a globalized world. Two sets of questions could structure the inquiry: On the one hand, can the institutions of consolidated democracies give proper voice and representation to legitimately resentful minority claims? What kind of institutional innovations are needed in order to engage citizens’ outraged sense of injustice? On the other hand, how should minorities make claims effectively? Provisionally, I can imagine that engaging emotions constructively is an important normative and prudential concern for all democratic communities, at all times, and across persons. Paying attention to such responses can help decision makers rectify legitimacy deficits, prevent crises before they occur, and socialize citizens for a more inclusive idea of democracy. In this way the theoretical conclusions this book has reached for contexts of radical transformations could be made useful for theorizing the essential emotional aspect of so-called consolidated, yet permanently imperfect, democracies.

N o te s

Introduction 1. 2. 3. 4. 5. 6. 7. 8. 9.

10.

11.

12. 13.

Knell, “Egypt’s Revolution.” Amnesty International, “Egypt.” Human Rights Watch, “Q&A on Hosni Mubarak’s Trial.” Shenker and Hussein, “Hosni Mubarak’s Sentence.” CBS News, “Reaction to Mubarak Sentence.” Ibid., “Mubarak Trial Blasted as ‘Farce.’” BBC News, “Mubarak Cleared.” For a list of dilemmas facing society in the wake of oppression, see Minow, Between Vengeance and Forgiveness. Ruti Teitel coined the term in 1991 to cover processes in postdictatorships in Latin America and Eastern Europe at the end of the twentieth century. For an account of the third wave of democratization see Huntington, The Third Wave. One emblematic model of such accounts of democratic consolidation is that by Linz and Stepan, Problems of Democratic Transition. For a critique of the transitional paradigm, see Carothers, “The End of the Transition Paradigm.” In a sense, democracies are perpetually in transition, continuously trying to redress injustices in ways that more closely approximate the norm of equal concern and respect. See Dyzenhaus, Calling Power to Account; Moran, “Trouble in Paradise”; Valls, “Racial Justice as Transitional Justice.” See, for example, Bassiouni, Post-conflict Justice. For general overviews of the main transitional justice mechanisms, their associated benefits, as well as their down sides, see Khazanov and Paine, “How to Deal

172

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16.

17. 18. 19.

Introduction with the Past?”; Arenhövel, “Democratization and Transitional Justice”; Olsen, Payne, and Reiter, Transitional Justice in Balance; Arthur, Identities in Transition; May, After War Ends. For a critique of paradigmatic transitional justice mechanisms as based on a narrow understanding of violence, see Nagy, “Transitional Justice as Global Project.” See Kritz, “Progress and Humility.” It is now a principle of international human rights law that genocide, war crimes, crimes against humanity, and torture cannot be covered by a blanket amnesty and that there is a state duty to investigate them. The principle of universal jurisdiction has also added to the power domestic courts have to charge major human rights violators irrespective of their nationality. The main legal instruments are the Convention on the Prevention and Punishment of the Crime of Genocide, adopted December 9, 1948, which entered into force on January 12, 1951; the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, adopted August 12, 1949, 6 UST, 3114, 75, UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, adopted August 12, 1949, 6 UST 3217, 75, UNTS 85; the Geneva Convention relative to the Treatment of Prisoners of War, adopted August 12, 1949, 6 UST 3316, 75 UNTS 135; the Geneva Convention relative to the Civilian Persons in Time of War, adopted August 12, 1949, 6 UST 3516, 75 UNTS 287; the International Covenant on Civil and Political Rights, adopted December 19, 1966, 999 UNTS 171; the Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment, G.A. Res. 39/46, 39, UN GAOR, Sup No. 51, at 197, UN Doc. A/39/51 (1984), which entered into force June 26, 1987. Regional human rights legal instruments in Europe, the Americas, and Africa have also contributed to this growing body of law. I am referring here, for example, to the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, and the Tribunal for the Genocide in Rwanda headquartered in Arusha, Tanzania. For an article that contests this position, see Bell, “Transitional Justice.” Elster, Closing the Books. Elster lists the two transitions from oligarchy to democracy in 411 and 403 bc Athens as the first historical instances of transitional justice. Ruti Teitel offers us a genealogy of such efforts comprised of three distinct stages. Her account is a useful tool for understanding both the evolution of various institutional approaches to postconflict or postauthoritarian justice and an increasing scholarly interest in the ways that societies have dealt with a past of suffering and abuse. The first stage of the now widespread phenomenon of transitional justice starts with the postwar accountability mechanisms inaugurated by the German Supreme Court in Leipzig in 1920 and ends with the Holocaust trials. This first period left a valuable legacy in terms of legal and practical precedents, but, according to Teitel, came about under exceptional circumstances and produced sui generis processes unlikely ever to recur in the same way. The second phase covers the transitions to democracy that began in the late 1970s in Latin America

Introduction

20. 21.

22.

23. 24. 25. 26. 27. 28. 29. 30.

31. 32. 33.

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and culminated in the demise of communism in the Soviet block in the late 1980s and early 1990s. At this stage, transitional justice, democratization, and radical economic reforms were closely related. Their simultaneity raised a set of novel challenges for the democratic elites and the population at large. This phase is also characterized by the mainly domestic initiation and orchestration of transitional justice projects. It is with the advent of the third phase that transitional justice as a paradigm was normalized and became a truly global phenomenon and concern. Legalism, a division of labor between local and international forums, as well as a shift toward a human rights-centered discourse on transitional justice are characteristic of the political transitions at the end of the twentieth century and the beginning of the twenty-first. Teitel, “The Law and Politics of Contemporary Transitional Justice.” An alternative genealogy, one that sees the demise of transitional justice projects due to their failure to live up to their own promises, is offered by Hazan in Judging War, Judging History. Hayner, Unspeakable Truths, 4. By “emotional circumstances of transition” I mean the emotionally charged atmosphere usually characterizing the political sphere of societies recovering from violence and injustice, with no direct connection to the Humean notion of “circumstances of justice.” Thanks are owed to an anonymous reviewer for inviting me to clarify this point. For arguments on the unnecessary opposition between restorative justice and ordinary justice and for sober evaluations of what truth and reconciliation commissions can achieve, see the collection of articles in Rotberg and Thompson, Truth v. Justice. Also Hayner, “Fifteen Truth Commissions” and Verdeja, Unchopping a Tree. I thank two anonymous reviewers of the book for their suggestion clarify my working account of democracy. Rawls, A Theory of Justice and Political Liberalism. Dworkin, Freedom’s Law. Brettschneider, “The Value Theory of Democracy.” Cohen, “Procedure and Substance in Deliberative Democracy.” Benhabib, The Rights of Others. Habermas, Between Facts and Norms. Republicans are divided between legal and political modalities of preserving freedom as nondomination. See Pettit, A Theory of Freedom and Bellamy, Political Constitutionalism. Mouffe, The Democratic Paradox and On the Political. This excursus was prompted by an anonymous reviewer. See for example, Govier, Forgiveness and Revenge; Opotow, “Psychology of Impunity and Injustice”; Philpott, The Politics of Past Evil and Just and Unjust Peace; Urban Walker, Moral Repair; Griswold, Forgiveness; Breen Smyth, Truth Recovery and Justice After Conflict. An entire issue of the Journal of Human Rights has been dedicated to the role of emotion in postconflict societies: Journal of Human Rights 5 (January 2006).

174 34. 35. 36. 37. 38. 39.

40.

41.

42.

43. 44.

45.

46. 47. 48. 49. 50.

Introduction Minkkinen, “Resented and Unforgiven.” Muldoon, “The Moral Legitimacy of Anger.” Saunders, “Questionable Associations.” Chakravarti, Sing the Rage. This excursus was prompted by comments by an anonymous reviewer. An extensive literature has been dedicated to this issue. For analyses of the multiple reasons why courts fail to resist authoritarian regimes see for example, Epstein, Knight, and Shvetsova, “The Role of Constitutional Courts”; Hilbink Judges Beyond Politics. For an account of how legal failures in the past haunt on-going trials, see Wilke, “Enter Ghost.” These deficiencies do not apply in the same way to all courts: some are more vulnerable than others. For analyses of the shortcomings of international trials, see Hazan, La justice face à la guerre; Koskenniemi, “Between Impunity and Show Trials”; Rabkin, “Global Criminal Justice”; Mégret, “In Defence of Hybridity”; Stover and Weinstein, My Neighbor, My Enemy; Stover, The Witnesses; Henham, “Some Reflections on the Legitimacy of International Trial Justice.” Mark Drumbl discusses the problematic fact that afflicted populations have no control over the design and the working of international institutions whose decisions greatly impact them. See Drumbl, Atrocity, Punishment, and International Law, 124. See also Stover, The Witnesses and Neuffer, The Key to My Neighbour’s House. In the case of the International Criminal Court, legitimacy has also been damaged because of the exclusive prosecution of African cases. For a list of pending trials, see the court’s web page: http://www.icc-cpi.int/en_menus/icc/ situations%20and%20cases/Pages/situations%20and%20cases.aspx. See Whitting, “In International Criminal Prosecutions.” Arendt, Eichmann in Jerusalem. For an insightful analysis of why this shortcoming might turn out to help the cause of reconciliation, see Osiel, Making Sense of Mass Atrocity. Drumbl compares the impact of legal didacticism of international and domestic courts and finds that the latter have historically been more successful in their pedagogy. Drumbl, Atrocity, Punishment, and International Law, 175–77. For a critical assessment of the fraught relationship between international courts and the afflicted societies, see Stover and Weinstein, My Neighbor, My Enemy; Stover, The Witnesses; and Huneeus, “International Criminal Law by Other Means.” Drumbl, Atrocity, Punishment, and International Law, 136. Osiel, Making Sense of Mass Atrocity, 147. Drumbl, Atrocity, Punishment, and International Law, 149. See Shelton, “Judicial Review of State Actions”; Moravcsik, “The Origins of Human Rights Regimes”; Huneeus, “International Criminal Law by Other Means.” Koskenniemi, “Between Impunity and Show Trials,” 11. On the other hand, Huneeus is right to highlight the work the Inter-American Court of Human

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Rights has done to acknowledge the needs of victims. While I agree with her evaluation of the Latin American experience, I do not think this is the case with the other prominent international and hybrid courts. Moreover, I would not go as far as to claim that the Inter-American Court promoted restorative justice in the targeted communities. See Huneeus, “International Criminal Law by Other Means.” 51. Drumbl is also troubled by the sidelining of restorative mechanisms that comes with the employment of international courts as the main vehicles of transitional justice. Drumbl, Atrocity, Punishment, and International Law, 124. 52. Different international courts relate differently to domestic courts. They can assume direct criminal jurisdiction (replacing the state courts), hybrid jurisdiction (sharing duties with state courts), or quasi-criminal jurisdiction (reviewing the proceedings of the state courts). For a detailed analysis of domestic courts’ resistance to various forms of interference by international courts and for some strategies for increasing the potential for collaboration between these two levels of adjudication, see Huneeus, “International Criminal Law by Other Means,” and “Courts Resisting Courts.”

1. Transitional Justice 1. For such realist critiques, see Snyder and Vinjamuri, “Trials and Errors” and McMahon and Forsythe, “The ICTY’s Impact on Serbia.” Nonetheless, there are many voices that claim a stable peace cannot be achieved without some measure of justice. See, for example, Goldstone, “Justice as a Tool for Peace-Making”; Akhavan, “Beyond Impunity?”; and Kerr, “Peace Through Justice?” 2. See for example, Shklar, Legalism; Teitel, “How Are the New Democracies?”; Orentlicher, “Settling Accounts”; Alfonsín, “‘Never Again’ in Argentina”; Nino, Radical Evil on Trial; Alvarez, “Crimes of State/Crimes of Hate”; Bhargava, “Restoring Decency to Barbaric Societies” and Crocker, “Truth Commissions, Transitional Justice, and Civil Society”; Rama Mani, “The Rule of Law or the Rule of Might?” Akhavan, “Beyond Impunity?”; Rosenblum, “Justice and the Experience of Injustice”; Fletcher and Weinstein, “A World Unto Itself?” 3. Criminal proceedings are considered important for upholding the norms of the Rechtsstaat, though not without complications: the issue of retroactive justice complicates the task of engaging fairly with the past. 4. See Penrose, “Impunity—Inertia, Inaction, and Invalidity.” 5. See Berneman, Settling Accounts. 6. Minow, “Memory and Hate”; Opotow, “Psychology of Impunity and Injustice”; Philpott, The Politics of Past Evil; Bilsky, Transformative Justice. 7. See Huyse, “Justice After Transitions”; Bass, Stay the Hand of Vengeance. 8. See, for example, Osiel, Mass Atrocity, Collective Memory, and the Law; Teitel, Transitional Justice; Douglas, The Memory of Judgment; Uitz, Constitutions, Courts and History; Stan, “The Vanishing Truth?”; Bilsky, Transformative Justice.

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9. See, for example, Hayner, Unspeakable Truths; Amstutz, “Restorative Justice.” 10. I shall use TRC as an abbreviation for this institutional mechanism. Sonali Chakravarti traces the genealogy of TRCs to the emotionally charged victims’ testimonies during the Eichmann trial. See Chakravarti, “More than ‘Cheap Sentimentality.’ ” 11. For some emblematic contributions to the literature on TRCs, see Boraine and Scheffer, Dealing with the Past; Hayner, “Fifteen Truth Commissions”; Asmal, Asmal, and Roberts, Reconciliation Through Truth. For critical perspectives on the South African Commission, see Gibson, “Truth, Justice, and Reconciliation” and Overcoming Apartheid; Mamdani, “Amnesty or Impunity”; Mendeloff, “Truth-Seeking, Truth-Telling”; Moldood, “The Moral Legitimacy of Anger”; Avruch, “Truth and Reconciliation Commissions”; Gready, The Era of Transitional Justice. 12. Argentina and Chile are probably the most famous examples. 13. See, for example, Roht-Arriaza and Mariezcurrena, Transitional Justice in the Twenty-First Century. 14. In a recent book, Bronwyn Leebaw points out that neither the International Military Tribunal at Nuremberg nor the South African TRC managed to deal with the “grey zone” of resisters, bystanders, and beneficiaries of injustice. See Leebaw, Judging State-Sponsored Violence. 15. For arguments on the unnecessary opposition between restorative and ordinary justice and for sober evaluations of what truth commissions can achieve, see Crocker, “Truth Commissions, Transitional Justice, and Civil Society.” Also Hayner, Unspeakable Truths. The metaphor of the “division of labor” has also been used to represent the cooperation between domestic and international agents in dealing with the past. See Betts, “Should Approaches to Postconflict Justice?” and Frölich, “Reconciling Peace with Justice.” For a dissenting voice, see Leebaw, “The Irreconcilable Goals of Transitional Justice.” Bisset argues that more institutional work is necessary before truth commissions and criminal courts can be truly compatible. See Bisset, Truth Commissions and Criminal Courts. 16. On the relationship between memory and identity, see Margalit, The Ethics of Memory and Celermajer, The Sins of the Nation. 17. Du Bois-Pedain, Transitional Amnesty in South Africa. For a complex analysis of the kinds of truth emerging from TRCs, see Breen Smyth, Truth Recovery and Justice after Conflict. 18. The division of labor thesis is more difficult to sustain for the South African case where retributive justice had to be forgone in the name of truth and social unity. David Dyzenhaus offers a survey of the ways in which philosophers have attempted to justify the institution in its South African form. While some theorists opted to base it on a different kind of justice, namely “restorative justice,” others have attempted to find nonjustice-related justifications, such as democratic deliberation. The most sophisticated and more plausible attempt to reconcile truth and justice for the postapartheid mechanism is formulated by Jonathan Allen, who

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20.

21. 22. 23.

24.

25. 26.

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claims that the TRC should be conceived of as the result of a “principled compromise” between values, a choice that had to be publicly justified and inevitably left some people dissatisfied. Justice had not been completely compromised, however; some of its aspects—its recognition function and its ethos—found proper expression within the TRC’s proceedings. Given the structure of the TRC, some weak punitive justice and a measure of compensatory justice were achieved along with the revelation of some apartheid violations. In this sense, we could say that the different committees of the South African TRC divided between themselves the labor of recognizing victims, instilling an ethos of justice, and awarding compensation. See Allen, “Balancing Justice and Social Unity” and Dyzenhaus, “Survey Article.” Martha Minow provides us with a twelve-point spectrum of goals that transitional justice hopes to achieve, ranging from ending denial, building a record for history, preventing violence, establishing democracy to social reconciliation, psychological healing, punishment, and the building of an international order where atrocities will not be possible. See Minow, Between Vengeance and Forgiveness, 88. International relations realists offer skeptical accounts of the international quest for justice, be it in the form of trials or domestically orchestrated truth commissions. Snyder and Vinjamuri claim that, unless backed by a blanket amnesty, neither trials nor truth commissions can advance the cause of peace and reform. The neglect of the distribution of power is the main problem afflicting transitional justice enthusiasts, they claim. See Snyder and Vinjamuri, “Trials and Errors.” Also, McMahon and Forsythe, “The ICTY’s Impact on Serbia.” For an account of how different kinds of amnesties can be designed so as not to further impunity, see Freeman, Necessary Evils. Juan Linz uses the notion of ressentiment politics to describe such risks. See Linz and Stepan, The Breakdown of Democratic Regimes. Ackerman, The Future of Liberal Revolution. Ackerman is part of what I would call a mirror for democratizers literature, a reference to the mirror for princes genre whose main representative is Machiavelli. Other major contributions are Linz and Stepan, The Breakdown of Democratic Regimes and Huntington, The Third Wave. Most realists focus on what they see as the naive idealism behind the recent institutional innovations in transitional justice, such as the development of the concept of universal jurisdiction, the establishment of the International Criminal Court, and the frequent demands for humanitarian intervention. See, for example, Goldsmith and Krasner, “The Limits of Idealism,” and Torpey, Making Whole What Has Been Smashed. Snyder and Vinjamuri, “Trials and Errors.” McMahon and Forsythe claim that the ICTY had only a minor, mediated impact on the former Yugoslavia and that “judicial shock-therapy” is highly overestimated. See McMahon and Forsythe, “The ICTY’s Impact on Serbia.” See also Goldsmith and Krasner, “The Limits of Idealism.” In a recent article, Forsythe

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28. 29. 30. 31. 32.

33. 34.

1. Transitional Justice examines the impact of recent criminal trials and thinks that they only had a minuscule effect on the political cultures that bred the atrocities. See Forsythe, “Human Rights and Mass Atrocities.” See Finnemore and Sikkink, “International Norm Dynamics and Political Change.” For the application of this concept to a transitional justice context, see Sikkink, “From Pariah State to Global Protagonist.” Snyder and Vinjamuri, “Trials and Errors,” 16–17. Ackerman, The Future of Liberal Revolution, 13–14. Snyder and Vinjamuri, “Trials and Errors,” 25. I borrow the concept of “a theory of human worth” from Hampton, “An Expressive Theory of Punishment.” Although motivated by different concerns, David Dyzenhaus clearly defends the inherent relationship between the establishment of a democratic order and the work of transitional justice mechanisms: “If one wants more than mere peace or mere stability because one wants to establish a democratic order in which human rights are respected, then considerations of justice must give structure to the transitional process.” We must not forget, however, that the shape of the relationship between justice and stability concerns is determined by the contingencies of the context. As will become clear later on, I share Dyzenhaus’s view on the contextually determined institutional form that dealing with the past takes within transitional moments. With him, I believe that forgoing justice is not permissible if the goal is the establishment of a democratic order, even if transitional justice is bound to be tragically imperfect. What we can do is orient our judgment in light of democratic principles and be honest about the limits the context imposes on our normative prescriptions. My particular interest lies with the kind of obstacles and opportunities the emotional component of the circumstances of transition creates for the decision makers faced with the tension between the values of unity/stability and justice. See Dyzenhaus, “Survey Article,” 492. For an empirical project backing up this argument, see David and Choi, “Getting Even or Getting Equal?” In his work on the South African TRC, Jonathan Allen claims that one of the main justice goals of the Commission was to give recognition to victims and engage the ideologically corrupted sense of justice in the wake of apartheid. See Allen, “Balancing Justice and Social Unity.” Following Allen, Dyzenhaus claims that by helping create a stable democratic order and by instilling citizens with an ethos of equal respect, the TRC can accomplish a measure of transformative justice. See Dyzenhaus, “Survey Article.” While I too am concerned with the sense of justice, I am more interested in the recognition and education of the negative emotions in which a violated sense of justice finds legitimate expression. In addition, I shall not limit my analysis to the South African experience, but try to provide a more detailed account of the mechanisms at play in the expression and socialization of a democratic sense of justice within more or less radical political transformations.

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35. Ceauߜescu’s show trial and execution in 1989 Romania and the problematic lustration practices in postcommunist Czech Republic or post-Salazarian Portugal are just a few instances in which resentment and indignation took abusive institutional forms. For a variety of extralegal justice mechanisms in the aftermath of the Second World War, see Vermeylen, “The Punishment of Collaborators”; Rousso, “L’épuration en France”; Virgili, Shorn Women. Other emblematic examples are the cycles of violence within twentieth-century divided societies such as Kosovo or Rwanda. For an accessible account of the logic of revenge in such contexts, see Govier, Forgiveness and Revenge. 36. See Bhargava, “Restoring Decency to Barbaric Societies.” 37. Some authors correctly point out that even in cases where evils have been committed by both parties to the conflict—as was the case in the Rwandan genocide, for example—it is not so difficult to identify the orchestrators and instigators of violence as the more responsible ones. See Akhavan, “Beyond Impunity?” 38. See Ackerman, The Future of Liberal Revolution and Snyder and Vinjamuri, “Trials and Errors.” 39. See, for example the German Basic Law, http://www.iuscomp.org/gla/statutes/ GG.htm#foreword (accessed March 18, 2015), and the South African Constitution, www.thepresidency.gov.za/docs/reports/annual/2008/preamble.pdf (accessed March 18, 2015). 40. The term evil laws refers to laws put in the service of oppression. The term also covers discriminatory laws within democracies. See Arendt, Eichmann in Jerusalem; Alford, “The Organisation of Evil”; Dyzenhaus, Calling Power to Account; Moran, “Trouble in Paradise”; Bilsky, Transformative Justice. 41. Linz and Stepan, Problems of Democratic Transition, 6 (emphasis added). 42. Nietzsche, Beyond Good and Evil and The Genealogy of Morals. 43. Robert Nozick has systematically explored the differences between revenge and retribution in his Philosophical Explanations. First, retribution is extracted for a wrong, while revenge may be for injury, harm, or slight and need not be for a wrong. Second, retribution sets an internal limit to the amount of punishment required according to the seriousness of the wrong, whereas revenge, on its own, sets no limit to what may be inflicted. Revenge is personal, whereas the agent of retribution need have no personal or special tie to the victim of the wrong for whom he or she extracts retribution. Fourth, revenge implies some emotional tone, pleasure in the suffering of the other, while retribution requires no such emotional element, though it may involve another: pleasure at justice being done. Last, there need be no generality in revenge. In contrast, the imposer of retribution, inflicting deserved punishment for a wrong, is committed to the existence of some general prima facie principles mandating punishment in similar cases. See Nozick, Philosophical Explanations, 366–68. For the ideological role that the dichotomy between revenge and retribution plays, see Unger, Knowledge and Politics. For an argument as to why revenge and punishment are not that different after all, see Zaibert, “Punishment and Revenge.”

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44. For the distinction between forgiveness and reconciliation, see Murphy, Getting Even, 13–14. Murphy argues that while forgiveness requires a change of heart in the victim (giving up resentment) that cannot be institutionally achieved, reconciliation refers to the resuming of a relationship, a process that does not necessarily involve forgiveness. He claims that the South African Commission only required the latter, not the former. Yet the rhetoric used by the main actors and commentators around the South African TRC seem to point to a different conclusion, namely that interpersonal forgiveness would lead to social reconciliation. See Tutu, No Future without Forgiveness; Graybill, “To Punish or Pardon”; Petersen, “A Theology of Forgiveness.” For more recent critiques of forgiveness as the basis for reconciliation, see Moon, Narrating Political Reconciliation and Murphy, A Moral Theory of Political Reconciliation. 45. For an account of the typical story of resentment-driven revenge, see Sarat, “When Memory Speaks.” For discussion of the risks associated with resentment and revenge within a variety of historical contexts, see all essays in this edited volume, Rosenblum, Breaking the Cycles of Hatred. 46. For a historical example of the abuses of indignation, see Virgili, Shorn Women. 47. For an interesting attempt to rescue ressentiment from Nietzsche and make it useful for democracy, see Solomon, “One Hundred Years of Ressentiment.” 48. There is a massive literature on the impact of apathy on the quality of democracy. For the importance of a vibrant civil society within consolidated democracies, see Lerner, The Passing of Traditional Society; Dahl, Who Governs; McClosky, “Consensus and Ideology in American Politics”; Eckstein, Division and Cohesion in Democracy. For both enthusiastic and skeptical accounts of the potential of participatory citizenship in transitional contexts, see Alexander, Real Civil Societies; Sandu, Sociologia tranziࠇiei; Diamond, “Three Paradoxes of Democracy” and “Towards Democratic Consolidation”; Geremek, “Civil Society Then and Now”; Rose, “Post-Communism and the Problem of Trust”; Fish, “Russia’s Fourth Transition”; Misher and Rose, “Trust, Distrust and Skepticism”; Linz and Stepan, Problems of Democratic Transition; Szeleny, Capitalism fúrú Capitaliߞti; Mungiu-Pippidi, Politica dupú comunism; Roht-Ariaza, “Civil Society in Processes of Accountability.” 49. Margaret Urban Walker provides an interesting account of the relationship between resentment and the violation of normative expectations. My focus is narrower than Walker’s: while she deals with all forms of resentment (moral and non-moral), I look only into a politically relevant form of resentment: that caused by violation of expectations of respect and membership in the community. See Urban Walker, “Resentment and Assurance.” 50. It is interesting that the wave of public protests sweeping across Northern Africa and some countries in the Middle East early in 2011 were sometimes held under the banner of “days of rage.” In the exemplary case of Egypt, “rage” was not expressed in illegitimate forms of violence, but mobilized the population in peaceful protests that brought about a much desired change.

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51. Walker refers to misrecognition of the victim’s anger by the community and the authorities as the “normative abandonment of the victim.” Urban Walker, “The Cycle of Violence.” For an account of the need to recognize victims symbolically and materially, individually and collectively, see Verdeja, Unchopping a Tree. 52. For an account of symbolic enfranchisement through participation in truth commissions, see Fullard and Rousseau, “Truth Telling, Identities, and Power.” 53. The long-term, sustained mobilization of public negative feelings and the transitional justice measures survivors and their families pushed for in Argentina are an illustration of the corrective function resentment and indignation can play within democratizing contexts. Judge Baltasar Garzón’s failed efforts to bring justice to Spain constitute another example of how the past finds its agents of justice in the present. 54. For an account of the influence the local plays within transitional justice processes, see Shaw and Waldorf, Localizing Transitional Justice.

2. Theorizing Resentment and Indignation 1. For two useful collections of classic articles and a survey of the latest developments in the philosophy of moral emotions, see Leighton, Philosophy and the Emotions and Solomon, What Is an Emotion? 2. See Rawls, “The Sense of Justice”; A Theory of Justice; Political Liberalism; Shklar, The Faces of Injustice. 3. See Cahn, The Sense of Injustice. A more recent, empirically driven treatment of the subject can be found in Dubber, The Sense of Justice. 4. See for example, Butler, Fifteen Sermons Preached at the Rolls Chapel. 5. See Geertz, Local Knowledge. 6. On the theoretical weaknesses of positions belonging to this class see Hacking, The Social Construction of What? 7. The emblematic text for such a position is James, “What Is an Emotion?” For an important contemporary contribution of Jamesian inspiration, see Prinz, “Embodied Emotions.” 8. As will become obvious, the account of socialization I shall introduce is framed by the categories worked through by Parsons in The Social System. See especially chapters 1, 2, 6, 7. 9. For arguments on the unacknowledged contamination of Rawls’s rationalist normative theory by sentimentalist elements, see Okin, “Reason and Feeling in Thinking About Justice”; Krause, “Desiring Justice”; Frazer, “John Rawls.” 10. Rawls suggests that a greater skill and facility in applying the principles of justice and in constructing arguments in particular contexts is an asset for offices in the judicial branch of government. Rawls, A Theory of Justice, 505–6. See also Rawls, Political Liberalism, 80. 11. Rawls, A Theory of Justice, 474; see also 480. 12. Ibid., 398.

182 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28. 29. 30.

31. 32. 33. 34.

35.

36. 37. 38.

2. Theorizing Resentment and Indignation Ibid., 109–16. Rawls, “The Sense of Justice”; Rawls, A Theory of Justice, 458–76, 495. Rawls, A Theory of Justice, 494. Rawls, “The Sense of Justice,” 299. Rawls, A Theory of Justice, 454. Ibid., 495. Ibid., 476. He claims that the encounter with someone’s resentment and indignation correlates with the experience of guilt by the agent. Rawls, Political Liberalism, 86. Ibid., 71. To clarify, I am here only referring to the constructivist nature of our emotional responses and not to constructivism as an approach to the formulation of moral principles (usually opposed to moral realism). According to a weak constructivist position, emotional responses are partly determined by nature and partly by socialization processes. Rawls, A Theory of Justice, 481. Ibid., 363–88. Ibid., 246. Ibid., 351. See Dyzenhaus, Calling Power to Account; Moran, “Trouble in Paradise.” Rawls, A Theory of Justice, 365. Ibid., 368. Jiwei Ci presents us with attempt to provide a formal account of the sense of justice, or as he calls it, the disposition to be just, which is neutral among reasonable substantive views of justice. By limiting his account of moral motivation to reasonable conceptions of justice, he can only deal with the first of the two scenarios I introduced above, one in which injustice can be framed as a break of reciprocity against the background of a culture that at some point endorsed a set of just principles. See Ci, Two Faces of Justice. See Cahn, The Sense of Injustice; Devlin, The Enforcement of Morals. Shklar, The Faces of Injustice. Consider the two scenarios I introduced at the end of the section on Rawls. In cases where civil society is apathetic, the challenge is to stimulate citizens to react and put forward claims through the available channels of political participation. See, for example, Bedford, “Emotions”; Solomon, The Passions; de Sousa, The Rationality of Emotion; Nussbaum, Hiding from Humanity and “Emotions as Judgments of Value and Importance.” Solomon, The Passions, 125–26. Wollheim, On the Emotions, 15. Solomon, “On Emotions as Judgments,” 190. One of the best defenses of cognitivism comes from Richard Wollheim, who investigates the place of thought in emotion by making a distinction between the roles it plays in rational inquiry and in serving emotion:

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When thought is denied a place in emotion, this is for the reason that to allow it in would be to intellectualize emotion in an unacceptable fashion. But this argument erroneously assumes that, inside emotion, thought will operate in the same way as it does inside, say, inquiry, and it overlooks the fact, considered in the first lecture, that thought is a merely instrumental disposition. Thought takes on an end from the outside. So, when thinking is made to serve inquiry, it serves the end that inquiry pursues: it aids in the construction, or purification, of some truth-oriented picture of the world. Equally, when thinking is recruited into the service of emotion, it helps to strengthen, or elaborate upon, some attitude that we have towards something in, or held to be in, the world. It follows that, if thinking intellectualizes belief, there is no reason to conclude that it will intellectualize emotion. (Wollheim, On the Emotions, 117)

39. Some of these debates are well presented in Solomon’s Thinking About Feeling. 40. Seminal texts on the social constructivist view of emotions are Scruton, “Emotion, Practical Knowledge, and Common Culture”; Averill, “A Constructivist View of Emotion,” Anger and Aggression, and “The Acquisition of Emotions”; Jones, “The Social Functions of Emotion” and “The Thesis of Constructionism.” 41. Mead, On Social Psychology. 42. Averill, “The Acquisition of Emotions,” 101. 43. Armon-Jones, “The Thesis of Constructionism,” 186–88. 44. Averill presents these three possible components of the object of an emotion, but says that not all are present in all emotions. He exemplifies these components and the way in which the rules of emotion apply in his book-length treatment of anger and its relationship with aggression. See Averill, Anger and Aggression. 45. Averill, “The Acquisition of Emotions,” 106. 46. Armon-Jones, “The Thesis of Constructionism,” 183. 47. Averill, “A Constructivist View of Emotion.” 48. Ibid., 314–15. The foundational work for role socialization in general can be found in Parsons, The Social System. Here, the emphasis is, however, on a specific class of norms, those of emotional appropriateness. 49. Greenspan operationalizes emotional appropriateness in terms of the emotions’ relationship to cultural norms and their practical consequences. See Greenspan, “Emotions, Rationality, and Mind/Body.” Calhoun adds the emotion’s biographical fit as yet one more dimension of appropriateness. For the purpose of this book, this dimension of subjective legitimacy refers to the victims’ entitlement to feel resentment toward their victimizers and the witnesses’ right to indignation. It also helps condemn self-righteous, unjustified feelings by bystanders or beneficiaries of violence. See Calhoun, “Subjectivity and Emotions.” 50. Armon-Jones, “The Thesis of Constructionism,” 191. 51. Solomon, The Passions, 130. While constructivists allow for some degree of passivity of the emotion, when it comes to clear cases of non-natural attitudes, the claim is that we interpret our reactions as passive rather than active, and this

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55. 56. 57. 58.

59. 60.

61. 62. 63. 64. 65.

66. 67.

68. 69. 70.

2. Theorizing Resentment and Indignation reproduces the common image of passions: “an emotion is a transitory social role (a socially constituted syndrome) that includes an individual’s appraisal of the situation and that is interpreted as a passion rather than as an action.” Averill, “The Acquisition of Emotions,” 312. Armon-Jones, “The Social Functions of Emotion.” Solomon, The Passions, 141. For an interesting critique of Solomon’s cognitivism, which, however, recognizes the adaptive function of emotions, see Greenspan, “A Case of Mixed Feelings.” See Deci and Ryan, “The ‘What’ and the ‘Why’ of Goal Pursuits,” 233–37 (this whole issue of Psychological Inquiry is dedicated to the state of the “needs debate” in social psychology). Ryan, Connell, and Deci, “A Motivational Analysis of Self-Determination.” In what follows I shall follow Averill’s typology of rules regarding emotions. See Averill, “The Acquisition of Emotions,” 106–9. The distinction between the internal and the external experience of emotion has been excellently presented in Wollheim, On the Emotions 115, 128. Imperfect internalization of constitutive rules is labeled neurotic, violation of regulative rules results in delinquency (broadly defined), and incomplete appropriation of heuristic rules makes one socially inept. Averill, “The Acquisition of Emotions,” 109. Scruton, “Emotion, Practical Knowledge, and Common Culture,” 522. The distinction between sentiments and feelings is widely shared in the moral psychology literature referred to in this chapter. For a clear account of this difference see Rawls, A Theory of Justice, 479. This is a point of agreement for cognitivist accounts of emotions. Urban Walker, “Resentment and Assurance.” On the relationship between the intentionality of emotion and desire, see Wollheim, On the Emotions, 15. Scruton, “Emotion, Practical Knowledge, and Common Culture,” 525. Ibid., 526. To these universal emotions, Scruton opposes particular emotions such as love and grief whose objects are concrete and unique, not merely instantiations of a general category. I would like to thank an anonymous reviewer for the invitation to clarify this point. One quick note: I do not want to claim that the evaluative component inherent in the sense of justice and its manifestations is always reflectively present to the individual. In this sense, I agree with Solomon that the appraisal in the emotion need not be detached, articulate, or conscious. See Solomon, “Emotions, Thoughts, and Feelings.” See Hampton on the subjective experience of harm. Hampton, “An Expressive Theory of Punishment.” I would like to thank Alice MacLachlan for this very insightful suggestion. There is a wide feminist literature on this issue, a literature that embraces cognitivism broadly understood. See Spelman, “Anger and Insubordination”; Frye,

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72.

73.

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75.

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The Politics of Reality; Narayan, “Working Together Across Difference”; Lugones, Pilgrimages/Peregrinajes; Campbell, “Being Dismissed”; MacLachlan, “Unreasonable Resentments.” Elsewhere I have discussed the role that public apologies and artistic products can play in disclosing and problematizing the structural dimensions of a past of injustice, dimensions that legitimately give rise to public resentment and indignation. Mihai, “Denouncing Historical ‘Misfortunes’” and “When the State Says ‘Sorry.’ ” Social psychology provides us with a vast literature on basic human needs and the ways in which their frustration can lead to cognitive emotions such as resentment or indignation. Should frustration be extreme, the individual may end up in psychological pathology. The seminal texts on the socialization of emotions and its relationship with basic human needs include the following: Murray, Explorations in Personality; Maslow, Toward a Psychology of Being and Motivation and Personality; Lederer et al., Human Needs; Deci and Ryan, “The Dynamics of Self-determination”; Staub, The Roots of Evil; Burton, Conflict; McCann and Pearlman, Psychological Trauma and the Adult Survivor; Baumeister, Escaping the Self; Pearlman and Saakvitne, Trauma and the Therapist; Stevens and Fiske, “Motivation and Cognition in Social Life”; Deci and Ryan, “The ‘What’ and the ‘Why’ of Goal Pursuits”; Staub, The Psychology of Good and Evil. See Dillon’s account of anomalous emotions due to socially inflicted damages to one’s basal self-esteem: Dillon, “Self-Respect.” Barry D. Adam is one of the most vehement defenders of a social-psychological approach to inferiorization that starts with the analysis of the psychological strategies individuals employ in order to cope with oppression. See Adam, “Inferiorization and ‘Self-Esteem.’” We must be aware, however, that the plurality of normative sources one has access to and the potential for incoherence between these alternative sources can lead to tensions and emotional conflicts within the individual and politically. Human needs theorists have identified scapegoatism as a possible consequence of destructive mechanisms employed to satisfy basic human needs. See Staub, The Psychology of Good and Evil, 55.

3. Enabling Emotional Responsibility I 1. The phrase has been coined by Hamilton and refers to the Supreme Court’s having neither the power of the sword nor that of the purse. See Hamilton, “The Judiciary Department.” For an account that links the court’s weakness to its self-restraint, see Bickel, The Least Dangerous Branch. 2. See Ferrara, Reflective Authenticity, Justice and Judgment, and The Force of the Example. See also the introduction Ferrara wrote to the special issue of Philosophy and Social Criticism dedicated to judgment. Ferrara, “Introduction.” 3. The alternative to a court with constitutional jurisdiction would be the Westminster model of legislative supremacy. In Europe, Spain, Germany, Italy,

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5. 6.

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8. 9.

10. 11. 12.

3. Enabling Emotional Responsibility I Portugal, and the postcommunist states all embraced a court of constitutional review once they exited authoritarianism. However, there are important institutional differences between these countries and the U.S. The U.S. legal system is based on an idea of diffuse, concrete, a posteriori control of constitutionality, while European countries have adopted courts of special jurisdiction on the Kelsenian model; these engage both in abstract and concrete, a priori and a posteriori review. One might speculate they would not want control of bills to be left to the incidence of cases. While this can have a safeguarding effect, it can also lead to a politicization of the judiciary. Eastern European countries have followed the Austrian blueprint as well. The famous postapartheid South African constitutional court has mixed review powers. Latin American democracies represent a patchwork of abstract and concrete, centralized and diffuse, a priori and a posteriori review. The U.S. model is more influential there than in Europe. For a detailed account of judicial review in Latin America, see Navia, “The Constitutional Adjudication Mosaic of Latin America.” This has naturally provoked vehement reactions from those who deplore the losses associated with shifting the locus of decision making from parliaments to unelected tribunals. The most vehement critic of the institution of judicial review is Jeremy Waldron, who claims that such an institution diminishes democracy and insults the citizens’ capacity for self-government. See Law and Disagreement. Parts of the argument presented in chapters 10 through 13 have been published in “A Rights-Based Critique of Constitutional Rights.” See also Waldron, The Dignity of Legislation. Waldron does, however, acknowledge the fact that within societies that do not enjoy the benefits of a rights-supportive political culture judicial review could be a compromise solution to protect unpopular minorities. For an argument that dissolves the tension between judicial review and democratic principles, see Scheppele, “Democracy by Judiciary.” Waldron, The Dignity of Legislation, 24–25. See Glendon, Rights Talk. The author contrasts the political enthusiasm characterizing postcommunist Eastern Europe with what seemed at the time a pervasive apathy among Americans. An account of how human rights consciousness developed during the years of repression in Argentina and South Africa can be found in Humphrey and Valverde, “Human Rights Politics and Injustice.” See Feinberg, “The Nature and Value of Rights.” This function is particularly important to the self- and other-respect that democracy seeks to cultivate among its citizens. See Prempeh, “A New Jurisprudence for Africa” and “Marbury in Africa”; O’Donnell, “Why the Rule of Law Matters.” See Ely, Democracy and Distrust. Another account of judicial review as a right to an individualized hearing can be found in Eylon and Harel, “The Right to Judicial Review.” Gloppen, Gargarella, and Skaar, “Introduction,” 1–6. Shapiro, “Judicial Review in Developed Democracies.” Stozsky, “Lessons Learnt and the Way Forward”; Teitel, Transitional Justice.

3. Enabling Emotional Responsibility I 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28.

29.

30. 31. 32. 33.

34. 35.

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Skach, “Rethinking Judicial Review.” Dickinson, “Terrorism and the Limits of Law.” Scheppele, “Democracy by Judiciary.” Dworkin, Freedom’s Law, 17. Ibid., 7. Ibid., 21–31. Dworkin, Law’s Empire, 166–67 (emphasis added). Ibid., 167. Ibid., 227. Dworkin claims integrity is not only a matter of concern for public officials but also a virtue in the vicinity of fraternity or community. What is more, the aspiration is that citizens themselves treat one another in a principled way. Equal concern for all members of a community is the mark of a fraternal association in a thin sense. However, he rejects any demanding understanding of fraternity as love and limits this attitude to equal concern for the other members of the community. Dworkin, Law’s Empire, 243. Denise Réaume offers an excellent critique of the supposed independence of integrity as a virtue for Dworkin. See Réaume, “Review: Is Integrity a Virtue?” See for example, Cotterrell, “Review: Liberalism’s Empire.” See Teitel, “The Law and Politics.” Ibid. Whether judges’ motivation in contributing to democratization is a noble one is another issue. As we shall see later on, in transitional moments—but not only in such moments—they might adjudicate in a way that is supportive of democracy for purely strategic reasons. Arendt, Lectures on Kant’s Political Philosophy. For a sampling of the emerging literature on judgment triggered by Arendt’s project, see Beiner, Political Judgment; Steinberger, The Concept of Political Judgment; Lara, Narrating Evil; Azmanova, The Scandal of Reason. For an analysis of the power and independence of judges in civil law countries, see Merryman, The Civil Law Tradition. Ferrara, The Force of the Example, 3. Ibid., 4. Ferrara makes this point when he analyses Ackerman’s work on the extraordinary constitutional moments that punctuate American history. See Ferrara, The Force of the Example, 37. Ferrara, The Force of the Example, 75. It becomes clear, now, why Ferrara thought he found in Dworkin’s theory of adjudication and its emphasis on integrity a recognition of the importance of exemplary reflective judgment. In comparing the Kantian idea of reflective judgment with the Aristotelian conception of phronesis, Ronald Beiner explains the inescapable need for both formal and substantive conditions for the exercise of the faculty of judgment. The addressed community can vary, yet it is only against such a background that

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42. 43.

44.

45. 46.

47.

3. Enabling Emotional Responsibility I reflective judgment gains meaning. See Beiner, Political Judgment. For the distinction between the formal and the substantive dimensions of political judgment, see also Gueorguieva, “Les deux faces du sense commun.” Ferrara, The Force of the Example, 74. Ibid., 46. Ibid., 61. Ibid., 51–57. Ibid., 119. Aristotle adds the goodness of the speaker’s character, the strength of his arguments, and his skills in engaging the audience’s emotions as variables determining the success of communicated judgments. Aristotle, Rhetoric, 1356 a, http://classics.mit.edu/Aristotle/rhetoric.html (accessed March 17, 2015). I am here indebted to Beiner, who offers an interesting and persuasive exploration of the connection between phronesis and rhetoric in Aristotle’s thought. See Beiner, Political Judgment. From a democratic theory perspective, Simone Chambers provides an account of deliberative rhetoric that is successful to the extent that it engages the hearer’s capacity for practical judgment. The opposite of deliberative rhetoric is plebiscitary rhetoric, which aims more at pleasing and gaining support for a proposal rather than engaging the other. See Chambers, “Rhetoric and the Public Sphere.” Dworkin makes this point in “Is Law a System of Rules?” Ferrara himself claims that Dworkin’s theory of adjudication in Law’s Empire can be subsumed under a turn to judgment in contemporary political theory. See Ferrara, Justice and Judgment. Beiner writes: “Men never judge in a vacuum; to overlook the objective constraints upon their judgments is to fail to do full justice to the situation that elicits political judgment in the first place.” Beiner, Political Judgment, 148. Teitel makes a good point when she represents transitional law as the blurry space between the old and the new. See Teitel, Transitional Justice. Leebaw recently offered a defense of the role of political judgment within processes of transitional justice. She believes that predominant logic of depoliticization associated with contemporary transitional justice reasoning cannot fully accommodate the role of contextual judgment. Leebaw relies on Arendt’s thought and argues that reflective judgment can open a broader discussion about the past, one that covers the “grey zone” of resisters and beneficiaries of violence. See Leebaw, Judging State-Sponsored Violence. This chapter shares Leebaw’s general conclusions about political judgment and seeks to provide an account of how reflective judgment should inform legal decisions—usually associated with determinant judgment—with a view to resonating with the emotionally mobilized public. I want to resist the idea that the model I am proposing is a top-down model of democratization. I do not want to dismiss the possibility that other political agents besides judges can make exemplary judgments that mobilize citizens in support of democracy. Transformational periods are moments propitious for imaginative political action, and courts are certainly not the only forces that can push the polity on the path toward a just democracy.

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48. Ricoeur, The Just, 131. 49. “Without examples or exemplars to reflect on we could not even begin to imagine what it would be to exercise such a faculty. We ourselves are schooled in the exercise of this faculty by observing the exemplary performances of others. We learn by example.” Beiner, Political Judgment, 163. 50. I thank an anonymous reviewer for inviting me to clarify this point. 51. See, for example, the fate of the Russian Constitutional Court under the Eltsin administration, the inefficient pressure by the Argentine Supreme Court on the military juntas between 1976 and 1983, or the subordination of the Chilean judiciary under Pinochet. 52. Wilke discusses courts’ political power to redefine or reproduce entrenched discriminatory identity divides, depending on the political context and the political motivations behind these decisions. See Wilke, “Staging Violence, Staging Identities.” 53. Scruton, “Emotion, Practical Knowledge, and Common Culture,” 522. 54. Tutu, Report of the South African Truth and Reconciliation Commission, 22. 55. Office of the President of South Africa, Act 9–34. 56. Ibid. 57. Ibid. 58. Ibid., sections 3 (a), (b), and (c). 59. See Bhargava, “Restoring Decency to Barbaric Societies.” 60. See Bell and Ntsebeza, Unfinished Business; Gibson, “Truth, Justice, and Reconciliation”; Hamber, “Rights and Reasons.” 61. Saunders, “Biko Family Lose Battle.” 62. Section 22 of the Constitution cited in Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others, case Constitutional Court 17/96, July 25, 1996, 11. 63. Art 33(1) of the South African Constitution, cited in CCT 17/96 at 13. 64. “Truth Commission Not Losing Credibility.” 65. CCT 17/96, 3. 66. CCT 17/96, 3–4. 67. Epilogue of the South African Constitution, cited ibid., 4. 68. If we follow Allen’s account of the principled compromise the TRC embodied, we can see that the court was trying to highlight the aspects of justice that had not been forgone for the sake of reconciliation: weak punitive justice, recognition, and compensation. Nonetheless, as the author forecast, not everybody can be persuaded of the merits of the contextually determined compromise. See Allen, “Balancing Justice and Social Unity.” 69. Saunders, “Biko Family Lose Battle.” 70. Graybill, “Pursuit of Truth and Reconciliation.” See also Gready, The Era of Transitional Justice. 71. “No Trial of Police in Biko Case.” 72. Biko, “Putting Tu and Tu Together.” 73. Gibson, “Truth, Justice, and Reconciliation.”

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74. See du Toit, “The Moral Foundations of the South African TRC.” 75. See Dempster, “Guns, Gangs, and Culture of Violence.” See also Nagy, “Violence, Amnesty, and Transitional Law.” Also Gready, The Era of Transitional Justice. 76. A quick clarification here: I have tried to link resentment and indignation to the frustration of legitimate expectations. To the extent that prosecutions were recommended by the TRC and never materialized because of incompetence or corruption, legitimate expectations were betrayed, and that represents a failure to show equal concern and respect for all. To the extent that prosecutions were not organized in order to avoid miscarriages of justice (the lack of evidence in the Biko case is one example), forgoing prosecution is a requirement of democracy itself. 77. Jacobson, “A Break with the Past.” 78. Law of National Pacification No. 22924, September 22, 1983 [XLIV-A] 1681, cited in Jacobson, “A Break with the Past,” 187. 79. This refers to the kidnapping, illegal imprisonment, torture, and killing of persons suspected of left-wing subversion. 80. Brysk, The Politics of Human Rights in Argentina, 61. 81. Human Rights Watch, “Argentina, Reluctant Partner.” 82. Ibid. 83. Nino, Radical Evil. 84. Legal theorists Carlos Santiago Nino and Jaime Malamud-Goti were the most prominent. 85. Nino, Radical Evil. 86. Jorge Rafael Videla, Emilio Eduardo Massera, and Orlando Ramón Agosti were the members of the first military junta that took power after deposing President Isabel Perón in 1976. General Roberto Eduardo Viola replaced Videla for a few months in 1981 as head of the junta. Admiral Armando Lambruschini took over from Massera as the chief of the navy. Omar Domingo Rubens Graffigna was commander of the air force after Agosti. See Human Rights Watch, “Argentina, Reluctant Partner.” 87. See Di Paolantonio, “Tracking the Transitional Demand.” 88. Decree 2741–43/12.30.90, Human Rights Watch, “Argentina, Reluctant Partner.” 89. Di Paloantonio, “Tracking the Transitional Demand,” 357. 90. Ibid., 362. For an anthropological study of the emotional reactions of the youngest Argentineans to structural impunity, see Kaiser, “Eschraches.” 91. Humphrey and Valverde offer an insightful analysis of the complex social and emotional forces moved into action by the state’s failure to address injustices, both before and after the dictatorship. See Humphrey and Valverde, “Human Rights, Victimhood, and Impunity.” 92. Ibid. The reference to the “bones” makes allusion to the return of bodily remains to families. 93. Di Paloantonio, “Tracking the Transitional Demand,” 363. 94. Kaiser, “Eschraches.” 95. Alicia Partnoy, “Survivor.” 96. See the association’s website: http://www.madres.org/navegar/nav.php (accessed November 4, 2014).

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97. H.I.J.O.S. stands for “Hijos e Hijas por la Identidad y la Justicia contra el Olvido y el Silencio”: http://www.hijos-capital.org.ar/. The association was founded by the children of the disappeared, but boasts a wide social basis. 98. I discuss the escrache as an artistic form of public denunciation in Mihai, “Denouncing Historical ‘Misfortunes.’” 99. Benegas, “The Escrache Is an Intervention.” 100. Kaiser, “Escraches”; Taylor, “ ‘You Are Here’ ”; Benegas, “The Escrache Is an Intervention.” 101. Taylor, “‘You are Here,’” 151. 102. Discussed in ibid. 103. In the aftermath of a decision by the Inter-American Human Rights Organization on the existence of victims’ right to truth, the so-called truth trials pushed on the courts by the Centre for Legal and Social Studies (one of the most powerful Argentine NGOs) took the form of hearings meant to satisfy the victims’ relatives’ right to truth. Due to a lack of cooperation by the military, their findings, though significant, were limited. See Human Rights Watch, “Argentina, Reluctant Partner.” Also, Abreg࠾, “Human Rights After the Dictatorship.” 104. See McSherry, “Military Rumblings in Argentina.” 105. Human Rights Watch, “Argentina, Reluctant Partner.” 106. These are two of the most active human rights groups in Argentina. 107. I owe the summary of the 188-page decision to the Human Rights Watch report “Argentina, Reluctant Partner” and to the CELS report “Pedido de inconstitucionalidad.” 108. Judge Cavallo made reference to the American Convention on Human Rights and the United Nations Convention Against Torture. See Jacobson, “A Break with the Past,” 193. 109. Ley 25 779, September 3, 2003, B.O. 30.226. 110. In Argentina it is the Supreme Court that has final jurisdiction over constitutional matters. CELS, “Pedido de inconstitucionalidad.” 111. Case “Simon, Julio Hector.” 112. Jacobson, “A Break with the Past,” 191–93. 113. CELS, “Las leyes de Punto Final,” 5–6. 114. Ibid., 5–9. 115. See Humphrey and Valverde, “Human Rights, Victimhood, and Impunity.”

4. Enabling Emotional Responsibility II 1. See the discussion in chapter 2 of this book. 2. In her contribution to these debates, Bisset argues that more institutional work needs to be done before trials and truth commissions can be harmonized as complementary mechanisms of transitional justice. Bisset, Truth Commissions and Criminal Courts. 3. For a sober analysis of the limits of trials of oppressors see Minow, Between Vengeance and Forgiveness and Wilke “Staging Violence, Staging Identitites.”

192 4. 5. 6. 7. 8. 9. 10. 11.

12. 13. 14.

15. 16. 17.

18. 19. 20. 21. 22. 23.

4. Enabling Emotional Responsibility II See Bass, Stay the Hand of Vengeance. See Nino, Radical Evil. Bilsky, Transformative Justice. Penrose, “Impunity, Inertia and Invalidity.” Dorfman, “Foreword.” Hayner, Unspeakable Truths; Bassiouni, Post-conflict Justice. Uitz, Constitutions, Courts and History. Douglas, The Memory of Judgment. For a balanced account of the role played by historians who appear as experts in international criminal trials and of the often-exaggerated difference between legal and historical epistemologies, see Wilson, Writing History in International Criminal Trials. Shklar, Legalism; Bass, Stay the Hand of Vengeance. Osiel, Mass Atrocity. He also dedicates an ample analysis to the failures of law to police the memory of the Holocaust in the Demjanjuk and Zundel trials. Demjanjuk was the first criminal (camp guard) to be judged in Israel after the Eichmann trial. The Israeli Supreme Court overturned his death sentence on procedural grounds in 1993, but in 2011 he was convicted for war crimes by a German court. He died in 2012, while waiting for the result of his appeal to this conviction. Zundel was a Holocaust denier tried in Canada in 1985 and then again in 1988. The law under which Zundel was charged was later struck down as unconstitutional, and he was a free man. For the purpose of this book, I shall focus on the author’s analysis of the Nuremberg and Eichmann proceedings. Douglas, The Memory of Judgment, 3. For a sociological account of German public opinion about the fairness of the Nuremberg trial, see Karstedt, “The Nuremberg Tribunal and German Society.” For an account of how courts have shaped the Israelis’ understanding of their dual identity as Jews and democrats, see Leora Bilsky’s excellent Transformative Justice. Bilsky studies four trials: Kastner, Eichmann, Kufr Quassem, and Yigal Amir. She employed three criteria inspired by the thought of Hannah Arendt as conditions for the transformational character of a political trial: natality (the trial’s capacity to come up with innovative legal categories to deal with historically unprecedented crimes), plurality (the trial’s capacity to enable a multitude of perspectives to be presented in the courtroom), and narrativity (an acknowledgment of the important sources of meaning coming out of testimonies). In fulfilling these three criteria, transformative trials perform an essential function in a democratic society: that of destabilizing the hegemonic narrative about identity. Douglas, The Memory of Judgment, 112. Ibid., 177. Ibid. Shklar, Legalism, 1–2. Ibid., 62. Hilbink’s work on the apoliticism of the Chilean judges under Augusto Pinochet’s dictatorship highlights the perils associated with the adoption of such a position by the judiciary: the belief in the separation of law from politics is one of the

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26. 27. 28. 29.

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factors that made Chilean judges collude with dictatorship. See Hilbink, Judges Beyond Politics. Shklar, Legalism, 112. Shklar also analyses domestic political trials in the U.S. Given the focus of this book, I shall mainly look into her treatment of the trials that followed the Second World War. Shklar, Legalism, 156–57. She is referring to their use of the crime of “aggressive war” instead of the category of “crimes against humanity.” Shklar, Legalism, 156. Bass makes a similar point when he writes that it is liberal nations that are particularly concerned with the organization of trials in the wake of violence and abuse. Bass, Stay the Hand of Vengeance. For evidence of the political concerns behind the framing of the International Tribunal’s charter, see, for example, Douglas, The Memory of Judgment, especially chapter 2. Shklar, Legalism, 145, 220. Ibid., 209. Does Shklar want to say, with Fuller, that there is an inner morality of the law? The claim remains unsubstantiated. I thank an anonymous reviewer for the invitation to clarify this point. For example, no evidence about allied war crimes was allowed in court, and the sentence raised many concerns. In a sense all transitional justice measures suffer from a tragic imperfection. While victors’ justice is necessarily incomplete, it need not always degenerate in blatant abuses of defendants for strategic goals. It is however possible to mark discontinuity with the victimizers’ practices by diminishing arbitrariness and living up to principles of equal concern for all. Shklar, Legalism, 158. For a variety of extralegal justice mechanisms in the aftermath of the Second World War see Vermeylen, “The Punishment of Collaborators”; Rousso, “L’épuration en France”; Virgili, Shorn Women. One could safely say that Bilsky’s requirement of plurality was thus observed. Bilsky, Transformative Justice. A question still remains about the German population’s legitimate resentment at Allies’ war crimes. The Allies’ bombing of German cities late in the war gave rise to legitimate negative feelings on behalf of the victims. While many efforts have been recently made by historians to critically engage this issue, the magnitude and the different nature of the Nazi atrocities has been obscuring the complexity of the moral wrongs committed by both sides. By not allowing tu quoque criticisms during the Nuremberg proceedings, this issue was silenced. The fact that the Allies also committed war crimes does in no way diminish the German leadership’s culpability. Nevertheless it points to the legitimacy deficits and to the regrettable use of double standards within political processes dealing with political atrocity. Unfortunately, this limitation currently mars the record of the International Criminal Court. See ICC’s docket at http://www.icc-cpi.int/

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49. 50. 51. 52. 53. 54.

55. 56.

4. Enabling Emotional Responsibility II en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases .aspx. Osiel, Mass Atrocity, 9. He refers to Durkheim, Division of Labour in Society. Osiel, Mass Atrocity, 9. Osiel himself is not unfamiliar with the literature on reflective judgment. In a later book he mobilizes theoretical resources from Hannah Arendt’s work in order to discuss the issue of culpability for atrocities. He intends to evaluate Arendt’s critique of the inadequacy of criminal law with regard to unprecedented forms of violence. The focus is on the legal principle of “manifest illegality,” and Osiel tries to ascertain whether the wrongfulness of their acts could have been manifest to individuals like Adolf Eichmann and Alfredo Astiz—the officer whose detention center is responsible for over half of the total murder count of the Dirty War in Argentina. Osiel, Mass Atrocity, Ordinary Evil, and Hannah Arendt. A rich—and not uncontroversial—literature on victimology has been emerging since the 1970s. For a review of the developments in this literature, see Schneider, “Victimological Developments in the World.” For arguments for and against incorporating a wider role for the victim within criminal trials and especially on the widely debated Victim Impact Statement, see Erez, “Victim Participation in Sentencing”; Bandes, “Empathy, Narrative, and Victim Impact Statement”; Edwards, “Victim Participation in Sentencing”; Crawford and Goodey, Integrating a Victim Perspective; Nadler and Rose, “Victim Impact Testimony”; Davis, “Victims’ Rights and New Remedies.” For an account of victims’ frustration with transitional justice trials, see Stover, “Witnesses and the Promise of Justice in the Hague.” Solomon, “Justice v. Vengeance,” 129. For the facts of the crime, see the Inter-American Court of Human Rights, Barrios Altos v. Peru. See Stevenson, “Why Impunity and Injustice for All” and Ambos, “Impunity and International Criminal Law.” Peru had been a party to the American Convention since 1978 and had recognized the competence of the Inter-American Court for Human Rights since 1981. Inter-American Court of Human Rights, Barrios Altos v. Peru, 5. Ibid., 12–14. See Caistor, “Analysis.” See Peruvian Truth and Reconciliation Commission, Final Report of the Truth and Reconciliation Commission. See Garcia-Godos, “Victim Reparations in the Peruvian Truth Commission.” Burt, “Guilty as Charged.” The abductions at the La Cantuta University made the object of another case at the Inter-American Court of Human Rights. See Corte Interamericana de Derechos Humanos, Caso “La Cantuta Vs. Perú.” See Mendez, “Significance of the Fujimori Trial” and Prusak, “The Trial of Alberto Fujimori.” See Alvarez, “Fujimori é sentenciado a 25 anos.”

4. Enabling Emotional Responsibility II

195

57. For a detailed analysis of the elements of this doctrine, see Ambos, “The Fujimori Judgment.” 58. Sullivan, “Translation of the Decision at the Trial of Alberto Fujimori.” 59. For testimonies of the victims’ relatives regarding their experience of the trial, see “Victims’ Relatives.” 60. Huamán Oyague, “A Day in the Trial of the Century.” 61. “Al hacer justicia por Barrios Altos y La Cantuta.” 62. Bajak, “Peru’s Fujimori Gets Twenty-five Years for Death Squad.” See also video interview with Ortiz, “Víctimas ante la sentencia de Alberto Fujimori.” 63. Leon and Kraul, “Former Peru President Fujimori Convicted of Mass Murder.” 64. The Fujimori Trial, “Interview with Ronald Gamarra.” 65. See “Em decisão inédita.” 66. Linz and Stepan, “The Effects of Totalitarianism-cum-Sultanism”; Tismaneanu, “The Revival of Politics in Romania.” 67. For analysis of the evolution of communism in Romania, see Jowitt, Revolutionary Breakthroughs and National Development and Shafir, Romania. 68. See Judt, Post-war, 622–26. 69. For a study of Ceauߜescu’s demographic policies see Kilgman, The Politics of Duplicity. 70. For a succinct account of the factors that influenced Ceausescu’s violent overthrow, see Tismƴneanu, “The Quasi-Revolution and Its Discontents.” 71. See Tismƴneanu, “Democracy and Memory.” Also Judt, Post-war. 72. See Tismƴneanu, “The Revival of Politics in Romania,” 90–91. 73. For the biographies of the main actors in FSN and the reasons why they fell out of the leaders’ favor, see Raportul Final al Comisiei Prezidenࠇiale Consultative. 74. Stenograma, Tribunalul Militar Excepࠄional. Translation by the author from the original in Romanian. The video recording of the trial (in Romanian) can be accessed at https://www.youtube.com/watch?v=584UW7dTTT4. 75. Stenograma, Tribunalul Militar Excepࠄional. 76. This figure had been grossly exaggerated, the number of dead people being somewhere between one hundred and one thousand. It is possible that the judge might have been himself the victim of manipulation by General Stƴnculescu. In the grip of depression and fear about the consequences of his actions during the trial, the judge committed suicide at the beginning of 1990. See the interview with the trial’s prosecutor in “Cadavrele ceauߜestilor.” 77. Stenograma, Tribunalul Militar Excepࠄional. 78. Around thirteen thousand villages, predominantly from the regions populated by ethnic minorities, were transformed overnight into “agro-towns.” This was in tune with the dictator’s idea of “modernization as urbanization.” See Judt, Post-war. 79. Stenograma, Tribunalul Militar Excepࠄional. 80. Ibid. 81. Ibid. 82. See Cartianu, “24 de ani de la execuࠇia soࠇilor Ceauߞescu.” 83. Gross, Tismƴneanau, and Mungiu-Pippidi, “The End of Post-Communism in Romania.”

196

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84. Violent repression of the intellectual dissidents and student movement against the continuation of the communist regime followed in the summer of 1990 when the leader of the Front, then president of the country, summoned miners from the Jiu Valley to appease the “hooligans” contesting his power. 85. For the meandering trajectory of the generals’ trials, see Culcer, “Stƴnculescu si Chiࠇac.” 86. See Raportul Final. 87. For an account of the vituperative attacks the commission and its president had to face from the left and extreme right groups, see Tismúneanu, “Democracy and Memory.” In 1999 a commission for the study of the Securitate files was established in an attempt to shed light on the workings of the much-hated institution; however, the commission was severely incapacitated by its own statute: the files remained under the control of the successor institution to the Securitate, and the commission could be denied access on grounds of “state interest.” See Stan and Turcescu, “The Devil’s Confessors.”

Conclusions 1. For a theoretical account of the strategic locking-in of international standards in the face of volatile political conditions, see Moravcsik, “The Origins of Human Rights Regimes.” 2. Some of the constraints met by courts as actors in democratization processes are examined in Epstein, Knight, and Shvetsova, “The Role of Constitutional Courts.” 3. See Hirschl, “Juristocracy—Political, not Juridical,” 6. Hirschl draws our attention to the timing of the delegation by executives and legislatives, as it is likely to reveal the interests of these institutional actors. 4. Minow carefully explores the importance of the media for the visibility of proceedings, but also as facilitating the creation of a shared experience for a divided nation. See Minow, Between Vengeance and Forgiveness. 5. Unlike Gready, I do not see the move toward a holistic understanding of transitional justice as a dilution of the concepts, but as a welcome complexification that avoids unproductive binaries and monolithic concepts. See Gready, The Era of Transitional Justice. 6. The most frequently talked about alternative to legal justice is justice by local, traditional forums such as the gacaca courts in Rwanda. While initially celebrated because of their stronger roots and greater legitimacy within the affected communities, problems soon started to emerge: génocidaire judges, proceedings based on insufficient, distorted, or false evidence, abuse of witnesses and defendants, and lack of appeal venues. See Human Rights Watch, Rwanda. For literature on this mechanism, see Clark, The Gacaca Courts. 7. I thank one of the anonymous referees of this book for this comment.

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Index

Administrative atrocity, 137 Agosti, Orlando Ramón, 114 Ahmen, Ramadan, 3 Al-Adl, Habib, 3 Alfonsín, Raúl, 114–15 Améry, Jean, 16 Ampudia, Samuel Dyer, 149 Apathy, 46, 115 Arab Spring, 3, 74, 168 Argentina, 113–22, 160–61; “dirty war,” 113; National Pacification Law 113; CONADEP 114; Full Stop Law 115, 119; Due Obedience Law 115, 119–20 Aristotle, 66 Autoria mediata, 145–46 Azanian People’s Organization, 103–4, 111 Barrios Altos Case, 120, 143–44, 146, 148 Basic human needs, 74 Bhargava, Rajeev, 34 Biko, Steve, 22 Biko, Nkosinathi, 102, 112 Brudholm, Thomas, 16

Bystanders, 61 Cahuana, Natividad Cóndor, 149 Cantuta, La, 145–48 Cavallo, Gabriel, 119, 121–22 Ceauߜescu, Elena, 23, 152–53, 155–56 Ceauߜescu, Nicolae, 23; trial, 151–56, 162 Chakravarti, Sonali, 16 Civil rights movement, 55, 74 Cognitivism, 62, 163–64 Colina, La, 143, 146–48 Constructivism, 53, 63, 163–64; weak, 47, 52, 63; strong, 47, 63 Courts, 10, 165, 167; as political agents, 17, 159–60, 166; domestic v. international, 18–20, 79–101; political impact, 162–63; traditional v. state, 165 Criminal trials, 124–58; Eichmann, 127– 28; “free evidence,” 146; functions of, 125–25; Nuremberg, 127, 132–36; as theater of ideas, 138; Tokyo, 132

222

Index

Democracy: conceptions of, 12–15, 31; consolidation of, 37, 168–69; constitutional, 14; egalitarianism, 76; ethos, 15; legitimacy, 39 Democratic shifts, 36–37 Discursive solidarity, 137 Division of labor, 28–29, 124, 165 Dorfman, Ariel, 123 Douglas, Lawrence, 127–30 Dworkin, Ronald, 81–82; conception of democracy, 87–88; law as integrity, 86–92, 97, 164 Emotions: appropriateness, 8–9, 61, 64–65, 69, 98; cognitive component, 67; culture, 46; and democracy, 163; instigation, 63, 69; intensity 69; legitimacy, 9; objective, 63; regimentation, 15; rules, 64, 66, 68, 76; socialization, 8, 64–68, 101; target, 63, 69; “transitory social role,” 64; volitional component, 67 Enfranchisement, 34–35, 42 Escrache, 116–18 European Court of Human Rights, 146 Exemplarity, 10, 17, 95–96, 99; of legal decisions 92–93, 142, 167 Expectations: moral 67–68, 71, 73, 75–76 Feminism, accounts of negative emotions, 72–73 Ferrara, Alessandro, 82, 94–96, 161 Fujimori, Alberto, 23; trial, 143–51 Herrera, Gamarra Ronald, 150 Garaffigna, Omar Domingo Rubens, 114 Gorriti, Gustavo, 149 Hausner, Gideon, 128 H.I.J.O.S., 116–18 Human worth, theory of 31, 71, 81 Imagination, 95–96, 98

Indignation, 7, 32, 38–40, 53, 67, 70–73, 136, 157, 163 Integrity, 22, 32–33 Inter-American Commission for Human Rights, 144, 147 Inter-American Court of Human Rights, 120, 144, 147 Judicial review, 22, 80, 83–122 Lambruschini, Armando, 114 Law, 94; legality, 99; legality v pedagogy, 125, 127–30, 133–41, 163; legal pedagogy, 80, 91, 93, 99, 126–29; legal romanticism, 165–66 Legalism, 130–36 Léon, Felipe Léon, 149 Madres de Plaza de Mayo, 116 Mahomed, Ismail, 104, 106–7 Massera, Emilio Eduardo, 114 Mead, George Herbert, 63 Menem, Carlos, 115 Minkkinen, Panu, 15 Montesinos, Vladimiro, 144, 147 Motivation: intrinsic, 65; extrinsic, 65 Mubarak, Hosni, 1–3 Muldoon, Paul, 16 Mxenge, Griffiths, 103 Narrative jurisprudence, 127–28 Ortiz, Gisela, 150 Osiel, Mark, 136–41 Oyague, Carolina Huamán, 149 Partnoy, Alicia, 116 Peru, 143–51, 160–61; Truth and Reconciliation Commission, 144, 147 Rawls, John: civil disobedience, 54–55; militant action, 55–57; natural duties, 50–51; partial compliance, 54–57; sense of justice, 50–57, 61

Index Refaat, Ahmed, 2 Reflective judgment, 10, 93–101, 166; community of, 95 Resentment, 7, 32, 38–40, 53, 67, 70–73, 136, 157, 163 Ribeiro, Fabian, 103 Romania, 151–58, 162; National Legislative Assembly, 154; National Salvation Front, 152–53, 157; Raportul Final al Comisiei Prezidenࠇiale pentru Analiza Dictaturii Comuniste din România, 158; Securitate, 151–52, 156 Roxin, Claus, 145–46 Saunders, Rebecca, 16 Self-respect, 71, 84 Sendero Luminoso, 143 Sense of justice, 47, 67–78, 98, 163–164; sources, 73–75 Shklar, Judith, 58–62, 118, 131–36; passive injustice, 58–59 Soberon, Francisco, 150

223

Solomon, Robert, 62, 79, 142 Stability v. justice, 29–31 Stƴnculescu, Victor Atanasie, 153, 157 South Africa, 102–13, 160–61; Constitution, 103–4; Constitutional Court, 104–11; promotion of National Unity Act, 103; Truth and Reconciliation Commission, 102–13, 160 Symmetric barbarism, 34, 103 Time, 33–34, 43, 92 Transitional justice: distribution 9; history 6; justification 7, skeptic/ realist 7, 29–36; term, 5 Trials, 23 Truth, 109, 127; v. justice, 27–29 Tupac Amaru, 144 Tutu, Desmond, 16, 102, 104 Victimizers, 4–5, 10–11, 31–33, 39, 69, 77, 140 Videla, Jorje Rafael, 114 Viola, Roberto Eduardo, 114