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Published online by Cambridge University Press: 24 February 2006
Closing the Books: Transitional Justice in Historical Perspective. By Jon Elster. Cambridge: Cambridge University Press, 2004. 310 p. $26.95.
This book makes an important contribution to the evolving field of transitional justice on both a theoretical and a practical level. In terms of theory, it ably complements other volumes in this area, such as those written or edited by Neil Kritz, James McAdams, Ruti Teitel and James Gibson, and others. On a practical level, it provides a conceptual framework, analyses, and conclusions from which countries undergoing transition from authoritarian rule, civil war, or violent conflict can draw in order to make informed choices.
This book makes an important contribution to the evolving field of transitional justice on both a theoretical and a practical level. In terms of theory, it ably complements other volumes in this area, such as those written or edited by Neil Kritz, James McAdams, Ruti Teitel and James Gibson, and others. On a practical level, it provides a conceptual framework, analyses, and conclusions from which countries undergoing transition from authoritarian rule, civil war, or violent conflict can draw in order to make informed choices.
Jon Elster defines transitional justice as “the processes of trials, purges, and reparations that take place after the transition from one political regime to another”. In this author's view, transitional justice is part of an empirical study of justice. This distinguishes the book from those approaches that regard transitional justice as an aspect of the empirical study of policy interventions that promote peace, reconciliation, social reconstruction, and/or democratization. The author highlights the retributive dimension of transitional justice, which brings criminal punishment and restitution of properties back into the spotlight. The book, therefore, complements those studies in transitional justice that emphasize issues such as apologies, forgiveness, forgetting, collective memory, truth, truth telling, and social acknowledgment, which find their expression in such institutions as truth and reconciliation commissions, restorative justice programs, and other alternative measures, such as gacaca in Rwanda. Elster's approach is enhanced by his detailed knowledge of transitional justice in the post–World War II era, his analysis of transitional justice in two historical periods (ancient Athens and French restoration), and his ability to understand the complexities of the third wave of transitional justice, especially in former socialist Europe.
The structure of the book is tersely directed towards the author's objective of offering an analysis of transitional justice, an analysis that addresses anomalies such as why, after some transitions, “wrongdoers from the previous regime are punished severely and in other cases mildly or not at all, and why victims are sometimes compensated generously and sometimes poorly or not at all”. Elster admits that he does not have a theory of transitional justice. This allows him to proceed without an introduction, and to end without a conclusion. He compensates by outlining the plan of the book chapter by chapter as it unfolds. Also useful is the summary that accompanies Chapters 1 and 2. After describing two historical cases of transitional justice and “the larger universe of cases” in the first three chapters, which form Part I, the author proceeds to the Analytics of Transitional Justice (Part II). He delineates his analytical framework in Chapter 4. Chapters 5 and 6, entitled “Wrongdoers” and “Victims,” respectively, study the two major parties of transitional justice. They deal with translating the complex notions of wrongdoing and victimhood into the legal and administrative processes of transitional justice. Chapters 7–9 examine (political) constraints, (retributive) emotions, and (party) politics, respectively, as factors of transitional justice.
The author demonstrates excellent analytical ability. His classification of actors, factors, motives, constraints, and so on provides a useful tool for analysis. With this analysis he is able to introduce readers to the changing nature of some categories over time, the persistence of others, and their overlaps or blurred distinctions. It is perhaps due to the limited space of the book that he has to select only some of the categories for more detailed analysis. The picture that emerges is one of a complexity of moral, political, and legal terms, which may leave readers wondering whether a theory of transitional justice is ever possible. Nevertheless, this categorization/conceptualization provides tools and a framework that can be used for much-needed empirical research on transitional justice.
The case selection is wide—from ancient Athens to the third-wave transitions. It is possible that the book could benefit from the inclusion of other counterfactuals. For instance, measures of active amnesia that were aspects of European peace treaties throughout history (Timothy Garten Ash, “The Truth about the Dictatorship,” New York Review of Books, February 18, 1998) may make us wonder why the dogs of transitional justice were not barking for more than a millennium. The strategies adopted by authoritarian regimes in recruiting collaborators may perhaps shed some light on how the dualism between the agency and the structure disproportionately shift from responsibility to excuses. Political justice in reverse transitions, such as those that followed the Soviet invasions of Hungary and Czechoslovakia, may provide us with other explanations for motives of various actors in (un)doing political justice in later transitions. Periods of “ordinary” justice, such as U.S. reconstruction legislation, dealing with McCarthyism, may make us wonder what the difference between transitional justice and ordinary justice is. Naturally, the volume of relevant historical events provides materials for several other publications and cannot be confined to one book.
One point in the book that may surprise law and society academics is the treatment of law, legal justice, and legal interpretation in “normal times” as value neutral and complete. Legal interpretation can be very contrary, as illustrated in the “Problem of the Grudge Informer” (Lon Fuller, The Morality of Law, 1964). The neutral approach provides the author with a platform for the determination of political justice. Given the fact that such a neutral approach to law is hardly possible (as shown by the “Borkation”—type of bickering over Supreme Court appointments, as well as by senators' efforts to get their predictability of how any nominee would decide specific cases), one may wonder whether we need to distinguish between political “transitional justice” in nascent democracies and “political justice” in advanced democracies. If we do not need to distinguish between transitional justice or political justice, then this would have implications for the selection of a larger universe of cases. We could then include recent policies used by advanced democracies that have responded to terrorist attacks by the introduction of shoot-to-kill policies, torture, and detention without trial. If we do distinguish, then we may wonder whether the extraordinary experience of transitional justice does not bring qualifications for the development of (international) legal standards. For example, the experience of World War II was the driving force behind the adoption of the United Nations Charter and the General Declaration of Human Rights; the Nuremberg trials were the impetus for limiting the prohibition against retroactivity (e.g., European Convention, art. 7/2; International Covenant of Political Rights, art. 15/2). To be fair, while Closing the Books does not to make a contribution to public law or international human rights law, it does contribute substantially to comparative politics.
In sum, this book provides interesting and valuable analysis of the “nuts and bolts” of transitional justice, and it fills an important gap in European policies that deal with the past. For scholars and researchers, it provides useful materials and a detailed categorization of concepts and terms that may be used in further research.