The politics of transitional justice

Constitution-making and constitutional reforms have their invaluable transitional role. Political changes and the dismantling of authoritarian regimes are specifically designed as constitutional changes. However, unlike the consolidated democratic rule of law, drawing on continuity, the transitional role of constitution-making and constitutional reforms is to facilitate political and social discontinuity. The transitional politics of democratic constitutionalism and the rule of law is thus also conducted in ways that are occasionally inconsistent with some formal principles of legality, especially legal security, stability, non-retrospectivity and generality of legal rules.

The concept of transitional justice as ‘partial and limited’ justice that ‘implies compromise’ (Teitel 2000: 230) is thus closely tied to the processes of democratic transition. Nevertheless, the concept of transitional justice is not limited to the post-authoritarian and post-totalitarian political condition. It is equally employed by non-democratic and democratic countries undergoing processes of political reform, post-conflict consolidation and social reconciliation, for instance, inNorthern Irelandand a number of African countries (Kritz 1995). Furthermore, despite the common view, transitional justice is not a modern political and legal phenomenon but dates back to regime change in classical antiquity, for instance, the retributive and restitutive measures taken against the oligarchs after the restoration of democracy in ancient Athens in the fifth century BC (Elster 2004: 3-23).

Transition from authoritarianism to democracy involves some hard political and moral dilemmas, such as the difference between oppressors and victims, proportionality between crime and punishment, retrospective justice, and political compromises between the outgoing autocrats and their democratic opposition. Transitional justice actions and decisions are influenced by policies and principles, interests and ideologies, reason and emotions (Elster 2004: 8). Persisting tensions between perpetrators and victims can never be underestimated during the period of democratization and need to be addressed in terms of transitional justice.

Transitional justice is both historical, backward-looking justice responding to the crimes and injustices of an autocratic regime, and prospective, forward-looking justice pursuing the goal of the liberalization and democratization of post-authoritarian society. It combines elements of general justice, such as the equality of citizens before the law and protection of their liberties, with calls for political realism and pragmatic compromises required by the process of political transition. It is the ideal of justice adjusted to the process of political transition and consolidation of the emerging democratic regime. It is political justice because it legitimizes democratic ideals by making them part of political and legal reality (Kirchheimer 1961).