In her book, The Conceptual Foundations, Colleen Murphy asks how transitional justice policies should be evaluated and addresses this question by elaborating an ambitious moral theory. “Transitional justice,” as conceptualized by Ruti Teitel (Transitional Justice, 2000), refers to the distinctive role of justice in the context of democratizing regime change. Contemporary debates on transitional justice tend to focus on specific policies, such as prosecution, truth commissions, reparation, and amnesty. Initially centered on choices of successor regimes in democratizing transitions, such debates expanded to encompass human rights norms and international policies. Given the mix of moral and political aspirations associated with transitional justice policies, and the diversity of contexts in which they are applied, many are skeptical of efforts to formulate general standards. Murphy agrees with those who contend that transitional justice is associated with distinct dilemmas, yet maintains that this should not prevent us from developing guidelines for assessing what makes one approach to transitional justice “more just” or “less just” than another. The Conceptual Foundations of Transitional Justice takes up the challenge of elaborating such a theory and outlines the basis for a radical shift in the focus of debates among scholars, policymakers, and activists.
“What constitutes the just pursuit of societal transformation?” (pp. 111–12). This is the central moral problem that transitional justice must address, according to Murphy. Citing Hume, she asserts that a theory of justice should correspond to the distinctive moral challenges associated with a “background set of circumstances” (p. 33). The first two chapters specify what she takes to be distinctive about the moral challenges associated with transitional justice. In the context of democratizing transition, Murphy contends, communities confront unique challenges associated with demands for justice in response to organized, systematic forms of wrongdoing committed on a vast scale with collective involvement. These challenges are exacerbated, she notes, by the way that such wrongs are normalized and reinforced by structural inequalities, as well as pervasive existential uncertainty regarding the trajectory of regime change and its implications for authority.
According to the author, then, most approaches to evaluating transitional justice share a common flaw: They do not ask or address the right questions. This seems like a simple observation, but it has profound ramifications. Murphy effectively builds on the critical leverage of this insight to articulate a compelling and comprehensive critique of prominent frameworks for evaluating transitional justice. For example, she rejects the case for evaluating transitional justice in accordance with established theories of criminal justice. Such theories define wrongdoing as deviating from shared norms, she observes, and cannot offer guidance to those seeking just responses to normalized wrongdoing. Likewise, she rejects the possibility that theories of distributive, corrective, or restorative justice might offer useful frameworks for addressing such challenges. She rejects the case for prioritizing responses to civil and political rights abuses over responses to economic exploitation and structural injustices. Murphy also rejects the reliance on minimalism, proceduralism, and consequentialism as the basis for seeking consensus. All such strategies elide the moral challenges associated with just societal transformation, she asserts, making it difficult to distinguish between moral aspirations and strategic compromises.
Murphy outlines a positive theory of transitional justice in Chapters 3 and 4. As a response to the challenge of just societal transformation, she argues, transitional justice should aim to establish respect for rule of law, restore “relational capabilities” with attention to inequalities resulting from economic exploitation, and cultivate grounds for limited political trust. She develops this discussion through a creative synthesis of insights from Lon Fuller and Martha Nussbaum, asserting that the pursuit of such goals ought to be guided by two particular moral values: reciprocity and agency. Along the way, Murphy develops an insightful case for linking backward-looking responses to institutionalized wrongs with the forward-looking goals of just transformation.
Anticipating concerns regarding the expansive character of such goals, the author limits the scope of her theory in two ways. First, she draws on principles of just war theory to assert that the pursuit of just societal transformation should be conducted in accordance with just means. For Murphy, this means that transitional justice should never treat responses to victims and perpetrators as merely instrumental in relation to forward-looking goals. However, this discussion could be confusing to readers, given that jus in bello principles are frequently incorporated into the mandates of transitional justice institutions in ways that narrow the scope of moral concern and exclude the kinds of transformative goals that Murphy champions. It is also difficult to see how the transformative goals that she associates with transitional justice can be reconciled with an approach to “just means” that remains bound to the criminal justice binary. If the goal is to pursue societal transformation and to establish respect for agency, this would seem to require just means for addressing the grievances of those who wish to speak and be recognized as political agents, rather than “victims,” and for assessing political responsibilities, as well as criminal liabilities.
A second way that Murphy limits the scope of transitional justice is by specifying that it applies only to “transitional communities” in the process of democratizing change. She does not discount the moral gravity of efforts to confront institutionalized wrongs, such as racism and colonial violence, in established liberal regimes. However, she argues that they do not qualify as transitional justice, because they lack the existential uncertainties of regime change. By conceptualizing transitional justice as a response to unique problems faced by “transitional communities,” the author makes her theory vulnerable to some challenges that are difficult for her to address. How could a process that aims to confront normalized, institutionalized wrongdoing possibly coincide with the temporal boundaries of a formal regime change? At what point in a transition does it become inappropriate to pursue or continue a process of transitional justice? Is there even such a thing as a “transitional community”?
It might make more sense to say that the challenges Murphy identifies with transitional justice arise when some members of a community seek transformative justice in response to institutionalized wrongs, and others, who do not wish to transform, respond with indifference, denial, aggression, or violence. Even in formally stable regimes, this kind of contestation can be devastating and deadly, and can destabilize existential certainties. Despite her claims to the contrary, it strikes me that Murphy’s case for transitional justice could be strengthened by recognizing that this distinctive set of challenges is associated with efforts to pursue just responses to certain forms of wrongdoing—those that have been institutionalized, authorized, and normalized—rather than the circumstances of certain types of communities.
Some people find it exasperating when scholars evaluate international and transitional justice institutions in relation to moral aspirations that seem impossible to meet. The point of such an exercise, Murphy usefully reminds us, is not to condemn institutions on the grounds that they do not measure up to an ideal, but to offer guidance for the work needed to assess or alter the relationship between institutions and the values they are established to maintain. The Conceptual Foundations of Transitional Justice advances this work in important ways, by developing a bold case for the importance of transitional justice. The book is a rewarding intellectual journey, and offers a provocative framework for transforming theory and practice.
