Colleen Murphy on transitional justice
BTG issue no. 4
Dear Friends,
I’d like to share with you Colleen Murphy’s article in the Boston Review, “How Nations Heal.”
Written in response to the recent events in US politics – chief of which was the eruption of violence at the US Capitol as Trump supporters protested against the confirmation of Joseph Biden as the country’s new president – and published just the day after Biden’s inauguration, the essay argues that in order for their nation to heal and in order to unify their deeply divided nation, the US should undergo concrete and collective processes of reckoning with past wrongdoing within the framework of transitional justice.
In her essay, Colleen Murphy offers this brief definition of transitional justice:
Transitional justice is both a legal and philosophical theory and a global practice that aims to redress wrongdoing, past and present, in order to vindicate victims, hold perpetrators to account, and transform relationships—among citizens as well as between citizens and public officials. Though it is not as well known in the United States as other paradigms of justice, the framework has been adopted in dozens of countries emerging from periods of war, genocide, dictatorship, and repression, from South Africa to Colombia. As a global practice, the framework began with the recognition that simply moving on hadn’t worked. (Murphy, Boston Review, 21 January 2021)
There is a temptation for societies (and even individuals) to hasten moving on and moving forward beyond their current desperate conditions by bypassing the necessary work of reckoning with past faults. Those guilty of injustice are quick to absolve themselves or to minimize the harms that they have caused and to recommend that their victims “move on” – “forgive and forget” seems to be their motto. And the rest of us – the so-called silent majority – are complicit in this forgetting. (I think it is an important question that interdisciplinary studies involving historians, sociologists, political scientists, and psychologists might address: what are the factors that account for our nation’s propensity to forget?)
In our country, the holding of public officials to account by their successors is seen as nothing short of political vendetta. This may very well be the case, but I think we should not miss the point that in reducing calls to justice to mere bitterness and resentment on the part of those seeking redress, we as a society deprive those who have suffered harm – especially those who are no longer alive to seek justice – their vindication. Just as important, in failing to reckon deeply with these public wrongdoings, we as a society fail to take stock of the systemic nature of the injustices that continue to haunt us and to “draw the line,” as Murphy puts it, “between what was accepted in the past and what will be acceptable in the future.”
Impunity is a word often used these days to characterize the current political milieu. From the standpoint of transitional justice, we can view impunity as a symptom of systemic injustice – that is to say, it is a symptom of how injustice has come to be woven into the fabric of our social relations. The spread of impunity indicates the extent to which the body politic has tolerated injustice, and thus has rendered itself unable to correct it.
Under this condition, thinking about justice needs to go beyond the retributive and even restorative paradigms of justice, since both fail to reckon with systemic injustice.
In this passage, Murphy is distinguishing transitional from restorative justice:
Perhaps the greatest problem is that this framework [i.e., restorative justice] implicitly assumes that there is a shared, morally defensible framework and standards for social interaction already in place. While it may offer valuable guidance for how to respond to wrongful, one-off interactions measured against these standards, it offers flawed guidance for dealing with systemic problems. To see this, consider how forgiveness looks in the context of abusive relationships. To urge victims of domestic violence to forgive—and to let go of their anger—risks encouraging them to capitulate to their own abuse, failing to take seriously the claim the victim has to better treatment, and overlooking the core problem: the abusive terms structuring the relationship itself. (Murphy)
Murphy goes on to distinguish transitional justice from retributive paradigms of justice:
Transitional justice also distinguishes itself from retributive justice, which demands the punishment of perpetrators of wrongdoing. Theories of retributive justice typically begin with the assumption of state legitimacy and address how the intentional infliction of punishment is compatible with a state’s recognition of the equality of all citizens. By contrast, in transitional contexts the question is how to establish the legitimacy of the state and the baseline equality of all citizens in the first place. Retributive theories do not tell us how punishment can do this. (Murphy)
The theory and practice of transitional justice are still evolving, but I think this is a very promising avenue of research and practical experimentation for us here in the Philippines. It applies to discourses on Martial Law and the return of the Marcoses and their surrogates to power. It also has much relevance to the problem of insurgency and the history of violence suffered by indigenous peoples.
Perhaps some of you would at least have an occasion to discuss the concept of transitional justice in your classes – ethics classes and classes on political and social philosophy would be the prime candidates.
Or you could be more creative…. I can envision a discussion of Plato’s Republic, for instance, in which transitional justice could be ranged along with the other conceptions of justice found in the answers of Socrates’ interlocutors to his question “What is justice?” in Book I.
It strikes me now that an important lesson to draw from Plato’s Republic is the idea that the question of what justice is cannot be addressed without looking at the political arrangement that organizes social life. This is one way to think about why the Republic, as it structurally descends from the depiction of the dream polis in Books V to VII, examines the various decadent forms of political rule all the way down to its tragic end in tyranny. In other words, we could interpret Plato as asking the question – is it possible for us to render each person their due, is it possible to punish justly, to distribute goods fairly (all answers found in Book I) in a corrupt society (depicted in Book IX)? Tyranny does not just pit the oppressor against the oppressed, as Thrasymachus seems to suggest; it infects and is enabled by a weak or corrupted sense of justice in the body politic. Under a tyrannical regime, the subjects tolerate – willingly or otherwise – a great deal of injustice against each other.
Transitional justice is a useful and necessary concept because it recognizes the reality of structural injustice and allows us to confront the hard work of collective transformation.
Colleen Murphy has written a book on this subject, published in 2017 by the Cambridge University Press: The Conceptual Foundations of Transitional Justice.
I have not yet read the book, so I cannot say more about it. But I recommend Margaret Urban Walker’s review article, “Capturing Transitional Justice: Exploring Colleen Murphy’s The Conceptual Foundations of Transitional Justice,” published in Journal of Global Ethics, Vol. 14, No. 2 (2018) : 137-146. You may also find the unpublished version of the manuscript in e-Publications@Marquette. I found this to be a particularly informative and incisive book review. Perhaps you would also be interested in reading it as an introduction to Colleen Murphy’s book.
Jean Tan
Ateneo de Manila University