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Memory and Politics:

Three Theories of Justice in Regime Transitions
Jonathan Allen
Department of Political Science
University of Illinois at Urbana-Champaign
Jonallen@[Link]

1. Memory and Injustice: a New Moral Sensibility

In his essay, The Contest of the Faculties, published in 1798, Immanuel Kant
presents an intriguing reflection on the French Revolution. The moral significance of the
revolution, he suggests, is to be found, not in any event directly connected to it, but in the
reaction of disinterested sympathy towards the revolutionary cause on the part of
onlookers. Because this response was potentially hazardous and had nothing to do with selfinterest, Kant sees it as the result of a moral disposition within the human race, and thus
as a moral phenomenon that can never be forgotten.1 Presumably for Kant, this serves as
grounds for hope of moral progress in the form of movement towards a global federal
union of independent republics, a union that would secure universal peace.2
Though I am no latter-day Kant, my central aim in this paper is to identify a novel
moral phenomenon that is surely as significant, though considerably less exhilarating, than
the circumstances noted by Kant in 1798. I am referring here to the remarkable rise of a
series of practices and institutions operating at both the national and global level, designed to
respond to war crimes, atrocities, human rights abuses, and grave injustices committed by
states or political movements against minorities and individuals. Arguably, this is a
development that takes its inception in the Nuremberg Trials and the passage of the United
Nations Genocide Convention in 1948. The Eichmann Trial of 1961 also played an
important role in alerting people to the idea that past human rights abuses require a response
in the present; indeed, most of the manifestations of memory politics that concern me here
have occurred since this trial.3 In the last three decades, there has been an explosion of
demands for official apologies for past injustices, calls for compensation or restitution of
stolen land or property, the appearance of more than twenty truth commissions, the creation
of the tribunals for the former Yugoslavia and for Rwanda, and various other attempts to
scrutinize past injustices, including lustration, talk of universal jurisdiction, etc. Michael
Ignatieff refers to this, rather optimistically, as a global human rights revolution.4 Others talk
of an Age of Apology, or a neo-Enlightenment international morality of restitution.5
However one labels these changes, they have certainly introduced a novel attitude into
politics.
Let me emphasize that I do not assume that this change, however we understand it,
is either permanent or unambiguously progressive. On the contrary, it is fragile, reversible,
vulnerable to manipulation, and ambiguous in its significance. The pressures unleashed by
the 9/11 attacks and by Americas chosen response to them the War Against Terror
threaten a full-scale reversion to Americas Cold War habits of overlooking human rights
abuses as long as they are committed by friends. The humanitarian intervention in Iraq
(one of the many belated second-string justifications for the war) also indicates that the
language of human rights may easily serve as a cover for the exercise of power. More
seriously still, threats of global climate change, struggles over scarce resources, depletion of
fossil fuels, etc., all have the potential to reverse the current concern over human rights and
redressing past wrongs.6
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Still, for the time being, the new moral sensibility remains important. The mere fact
that the Bush administration calculated that they could gain political capital from an appeal
to humanitarian considerations and from creating a tribunal to try Saddam Hussein suggests
that the new politics of memory is an ideological force to be reckoned with. If this is so, then
it is important to take note of this development and to place some of the prevailing attempts
to make sense of it under critical scrutiny.
The altered moral sensibility I am concerned with here arises from a number of
different political struggles the demands of indigenous or decolonized peoples for official
apologies and restitution, African-American calls for reparations for slavery, demands arising
out of the twentieth centurys major wars, or from ethnic conflicts and regime transitions.
The new memory politics also manifests itself on at least three different levels: the symbolic
level, the level of criminal justice, and the redistributive or compensatory level. In this paper,
I am going to confine my attention to the implications of the new memory politics at the
level of criminal justice, as this emerges in the aftermath of regime transitions. I will also
address some aspects of the symbolic dimension of memory politics, as I take this to be the
moral core of the new sensibility.
In the context of regime transitions, the central challenge confronting new
democracies concerns the dilemma of how to deal with injustices and atrocities committed
by authoritarian or totalitarian predecessors or by agents of a liberation struggle, a dilemma
usually faced in the context of societal division and alienation from state institutions,
especially the institutions of justice.7 There are in principle at least seven different options
open to new democracies: amnesia or inaction; pardons; full amnesty; prosecution and trials
(either domestic or international); lustration (disqualifying collaborators from public office);
publicity (the opening of the Stasi files in Germany is the key example here); conditional
amnesty or truth commissions.8 The truth commission option has been identified by many
as an especially appropriate response to the problems posed by political transitions, and I
shall concentrate on this here, though this by no means precludes reflection on prosecution
or full amnesty. I also propose to devote most of my attention to claims made about the
South African Truth and Reconciliation Commission (TRC), as this has been identified as a
model of sorts for subsequent attempts to deal with transitions.9
There is a great deal that can be said about the politics of truth commissions and the
practical challenges that they face.10 My focus here is on the claim that truth commissions
provide a model of transitional justice, and in particular, on two prominent attempts to
articulate the moral significance of truth commissions the contextualist, or transitional
justice argument, and the restorative justice model. I hope also to defend an alternative
way of thinking about the TRC as a remedial attempt to achieve a principled compromise
between the values of justice and reconciliation or social unity, or in more practical terms,
as a complement to prosecution rather than an alternative to it.11

2. Challenging and Defending Conditional Amnesty: Moral

Compromise or Transitional Justice?

Truth commissions have emerged over the last two and a half decades in the wake of
regime transitions from totalitarian and authoritarian rule. Advocates of these institutions
have typically viewed them, on the one hand, as an alternative to the politically unfeasible
option of full prosecution of human rights offenses. On the other hand, they have been
reluctant to accept calls for a blanket amnesty for offenders, regarding such a course of
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action as degrading to victims and their families or as threatening to the ideal of achieving a
more just society; here, what I described above as the new moral sensibility has made its
presence felt. Truth commissions have thus emerged gradually, in the contested space
between full prosecution and amnesty. Although their mandates and institutional design
have varied considerably, they have all shared the goal of uncovering and making public
information about past abuses and they have all been seen as a response to a situation in
which either amnesty has already been granted to offenders or it is deemed impossible to
prosecute offenders for some other reason.
The South African Truth and Reconciliation Commission drew deliberately on the
experience of past truth commissions, but also differed from them in important ways. For
present purposes, the key difference was that an explicit and deliberate link was made
between the proceedings of the TRC and the granting of amnesty. In order to obtain
amnesty, an offender had to apply to the TRC, participate in its hearings, and meet with its
requirements, including the requirement of full disclosure. It is this deliberate connection
between amnesty and the TRC that must be defended if the moral justifiability of the
institution is to be established. If, as Robert Rotberg claims, the South African commission
has become the model for all future commissions, this is an especially important task
(Rotberg 2000: 6).
Although the TRC had to face many different criticisms in the course of its brief lifespan, the fundamental objection is surely that it sacrificed the right of victims and survivors
to justice, understood in the sense of punitive justice. This is the moral core of the legal case
against the TRC brought jointly by the Azanian Peoples Organisation and the Biko,
Mxenge, and Ribeiro families, a challenge that was, however, rejected by the South African
Constitutional Court, on the grounds that the Interim Constitution had made a choice for
reconciliation and democratic consolidation over prosecution and punishment. The Court
went on to argue that the terms of the Interim Constitution required the removal of civil as
well as criminal liability, effectively withdrawing all normal forms of legal redress from
victims. Although Archbishop Desmond Tutu and others defended this move by appealing
to an ideal of ubuntu, or humaneness, this line of argument clearly did not persuade all of
the critics of the TRC that they had not been required to relinquish rightful claims of justice
for a goal whose legitimacy was not obvious to them. For example, Churchill Mxenge,
brother of assassinated activist, Griffiths Mxenge, objected, Unless justice is done its
difficult for any person to think of forgiving (Rosenberg 1996: 88). Others, at various stages
of the hearings, objected to the TRCs privileging of reconciliation over justice in similar
terms.
It seems to me that whether we regard the TRC in particular, and the truth
commission model in general, as a morally appropriate response to the injustices endured by
victims and survivors depends crucially (although not exclusively) on the response we give to
these objections. Although I believe that the practice of granting conditional amnesty
engaged in by the TRC may indeed be morally defensible, the way in which this is justified
has decisive implications for the views we adopt concerning social unity, law, and the
standing of individuals in a new democracy.
Defenses of the TRC and the truth commission model against the charge that it
unjustifiably sacrifices justice tend to fall into two broad groups. The first cluster of
responses concedes that a moral compromise or trade-off of some sort has occurred, but
goes on to argue that the particular compromise on which the TRC is founded is morally
defensible. My concern here, however, is with the second set of defenses, which denies that
the TRC has to be seen as a form of moral compromise at all. Instead, advocates of this view
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insist that the idea of the TRC embodies a distinctive and coherent understanding of justice.
For some, the TRC promotes transitional justice the justice appropriate to societies
undergoing transition. For others, the TRC seeks restorative justice, a notion that ought to
replace retributivist theories of criminal justice.
The contextualist or transitional justice model is most closely associated with Ruti
Teitel, who has offered a series of influential defenses of it over the past five years12 The
central thrust of Teitels argument is the claim that the context of a shift in political orders
pose a series of distinctive jurisprudential, legal, and moral problems, problems that present
institutions of law with tasks radically unlike those that they normally carry out in settled
democratic orders.13 In the highly politicized transitional context, institutions must provide
some continuity in legal form, but must also facilitate normative change.14 This means that
courts must find ways of overcoming problems of retroactive justice (prosecuting people
for acts that were not crimes at the time, as a matter of positive law), must decide whether to
prosecute the leadership or the people who carried out their orders, and must promote social
peace as well as justice. Teitel claims that these imperatives indicate that transitional justice
has a different set of priorities from conventional practices of justice. Her point seems to be
that these priorities above all, the need to promote and strengthen democratization allow
greater flexibility to the courts in deciding how to sanction past acts.15 In particular,
punishment need not be exercised to the fullest extent if this is likely to threaten the process
of democratization. Other responses, such as official apologies, amnesties, and reconciliatory
measures may be appropriate measures of transitional justice, if they are more consistent
with the goal of promoting stable democracy.16 Teitel comments that these practices
point to a fragmentary but shared vision of justice that is, above all, corrective. What is
paramount is the visible pursuit of remedy, of return, of wholeness, of political unity an
impetus incorporating values external to those of ideal theories of justice (Teitel 2000: 225).
In a more recent statement of her position, Teitel associates distinct measures
such as trials and truth commissions with historical phases of transitional justice,
suggesting that political actors from the late 1970s on deemed the Postwar transitional
justice of the Nuremberg model inappropriate to their concerns, and opted instead for a
series of responses in which justice became a form of dialogue between victims and their
perpetrators (Teitel 2003: 80). In this second phase of transitional justice, she suggests, the
forward-looking aims of reconciliation and forgiveness manifested in the practice of truth
commissions became central, to the extent that they displaced legal notions of guilt and
responsibility. Teitel sees truth commissions as a valuable attempt to incorporate the concern
with human rights evident in the postwar phase within a broader, communal framework
focused on rebuilding political identity based on local understandings of legitimacy. She also
hints that truth commissions were somehow linked to critical responses to globalization,
though she does not explain this assertion.17 However, she is critical of the second phase for
emphasizing the goal of peace more than that of democracy, and suggests that we have now
entered a new phase of transitional justice in which the expansion of the law of war through
the ICC and forms of universal jurisdiction provides the basis for a global rule of law,
though she worries that this may normalize transitional justice in the service of the war
against terror.
I am frankly puzzled by Teitels argument(s). In particular, in her most recent
statements, it is unclear whether she is simply engaged in describing a historical sequence of
imperfect attempts to respond to past injustices or whether she thinks that the different
phases of transitional justice have normative force within their historical context (meaning
that it would simply be a mistake, in phase two, to promote the forms of prosecution
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pursued in phase one). But this puzzle pervades all of Teitels work. She seems to suppose
that the distinctive problems of the transitional context necessitate practices and therefore
generate a distinctive understanding of justice transitional justice. This view is open to
two different kinds of challenge.
First, it is possible to challenge Teitels sharp distinction between periods of
transitional and normal justice. In a recent article, Eric Posner and Adrian Vermeule
concede that there are differences of degree between regime transitions and intrasystem
transitions, but argue that some large-scale intrasystem transitions, such as constitutional
amendments, or the passage of controversial landmark legislation such as Brown v. Board of
Education involve challenges just as significant as those faced in regime transitions.18 Posner
and Vermeule suggest that the need to balance values of justice, stability, democracy, etc., is
a pervasive feature of normal systems of justice too. While their main aim in making this
argument is to answer criticisms that transitional justice practices overburden judicial
systems by confronting them with insoluble moral and practical dilemmas, the implication of
the argument is that the contrast between a transitional and a normal condition is
overdrawn. While the circumstances of regime transition may make it difficult to pursue
punitive justice, it is an exaggeration to think that this simply cannot be secured, or that it is
a misreading of the situation to call for prosecutions. While the circumstances of transition
may be distinctive in some respects, they do not necessarily render calls for punitive justice
mistaken or misplaced.
This brings me to the second challenge that can be raised against Teitels conception
of transitional justice. The real issue, I think, is not the dubious claim that the
circumstances of transition are unique and have nothing in common with those of
established democracies.19 Rather, defenders of this view of the TRC must demonstrate that
the content of transitional justice does indeed constitute a complete, distinctive, and coherent
conception of justice. However, although I think there is a great deal to be learned from an
examination of the ways in which truth commissions do respect justice, I do not think that
the claim that transitional justice forms a unique and complete conception of justice can be
sustained.
The South African academic, Andr du Toit, offers a particularly stimulating attempt
to establish the claim that transitional justice is a free-standing and coherent conception of
justice, based on distinctive moral principles and responding to distinctive moral needs (du
Toit 2000: 124; 138). In his view, transitional justice must be understood as a dual
commitment to truth as acknowledgment and justice as recognition(2000: 126-128; 132139). In circumstances of transition from authoritarian or totalitarian rule, societies typically
suffer from a deficit of truth factual knowledge about past atrocities is lacking, officials
resist acknowledging the existence of such events (even when this is a matter of widespread
knowledge), and victims seek acknowledgment of their suffering. The crucial point to grasp
is that in these circumstances, truth commissions do not simply seek to uncover factual or
forensic truth, but the acknowledgment of truth, an acknowledgment, which, when it is
secured, is experienced by victims as a restoration of their human and civic dignity (2000:
133-134).
The conception of justice embodied by truth commissions is closely allied to this
sense of truth as acknowledgment; it is justice as recognition that is to say, the justice
involved in the respect for other persons as equal sources of truth and bearers of rights
(2000: 136). More specifically, transitional justice amounts to a commitment to the
restoration of the human and civic dignity of victims by giving them an opportunity to
emerge from a realm of silence and make their experiences audible. In this respect, the TRC
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has of course gone further than other truth commissions, by giving victims a public forum
from which to tell their stories of suffering or survival. This is a form of recognition that
goes beyond abstract (Kantian) moral respect, according to du Toit. Within the TRC, victims
are accorded the right to tell their own stories, framing them from their own perspectives
and being recognized as legitimate sources of truth with claims to rights and justice (2000:
136). In practice, he adds, this requires a fundamentally different orientation to that of the
criminal justice system in the form of victim-centered public hearings nonadversarial and
supportive forums (2000: 136). The point of these hearings is not so much to arrive at
factual truth, but to allow the narrative truth of the victims to be heard and afforded
public attention and respect.
I am very much in agreement with du Toits proposal that we should see truth
commissions as institutions intended to secure a kind of public recognition for victims.
Moreover, I think that it is correct to point out that the proceedings of the TRC afford a
kind of recognition to victims that is not available through the procedures and institutions of
criminal justice. Truth commissions are a remedial response to situations in which respect
for justice has been undermined and in which the rule of law and the principle of equality
before the law have been eroded. Part of their importance consists in their role as rituals of
recognition of the suffering of victims of violence and abuse hence the emphasis on giving
people a chance to tell their stories. This is evidently not a central concern of a court of law,
but it is necessitated here by the deliberate attempts on the part of the past regime to exclude
these people from moral consideration to impose a kind of political death on them.20 Thus,
truth commissions serve as public rituals of entry into political life, rituals that reverse the
attempt to remove victims from the sphere of moral agency and equal concern by
encouraging them to stand up and tell their stories. Courts of law in stable and relatively just
societies generally do not have to engage explicitly in this kind of remedial activity.
But although truth commissions provide a form of recognition different from that
afforded by courts of law, it would be a great mistake to think of this function as a substitute
for, or a fully coherent alternative to, procedures of law and criminal justice. Part of the
rationale of truth commissions is that they serve as remedies for situations in which the rule
of law has been absent or severely distorted. Their task therefore is not only to focus
attention on the stories of victims, but also to signal the restoration of victims to an equal
footing with all citizens before the law. The underlying goal is then to vindicate the
importance of justice and of the legal recognition previously denied victims.
My concern about the transitional justice argument is that it threatens to overlook
this connection between truth commissions and legal justice. Defenders of the idea of
transitional justice are often quick to express their dissatisfaction with aspects of criminal
justice. For example, complaints that courts of law are not victim-centered or that the
practice of cross-examination is unsatisfactory because it subjects people to added trauma,
abound in the literature on truth commissions.
No doubt there is considerable truth in these assertions, as well as a need to reform
procedures of criminal justice in the light of such criticisms. But I am concerned that this
line of argument often signals a lack of appreciation that a system of criminal justice also
affords individuals a kind of recognition, and obstructs an understanding of the nature and
significance of the recognition provided by law and criminal justice. Thus Andr du Toit
favorably contrasts the supportive and non-adversarial procedures of truth commissions
with the adversarial aspects of trials (cross-examination, for example) and defends the
relaxation of rules of evidence and the audi alterem partem rule (2000: 136). Others are quick to
applaud the supportive atmosphere of truth commissions from a therapeutic point of view.21
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However important these considerations are, there seems little awareness of what has been
lost when the requirements of law are relaxed. For the rule that the other side must be heard,
strict standards of evidence, and practices of cross-examination aimed at detecting
inconsistencies in testimony are all part of a form of recognition afforded by law recognition
of all rights-bearers as equal moral agents, able to offer a reliable and rational account of
their conduct.22 Moreover, legal recognition of someone as a rights-bearer amounts to a
form of respect, and is conducive to a sense of self-respect on the part of the rights-bearer.
It contributes to the sense that he is an active moral agent, able to make claims.23 But it also
means that he is accountable for those claims hence the emphasis of law on the impartial
assessment and adjudication of claims and testimony.
Truth commissions are special institutions aimed at introducing those unjustly
excluded from legal recognition into the realm of civic respect. When we see these
institutions as remedial or as preparatory, we emphasize the role they may play as rituals of
induction into legal recognition. But it is risky to see the relative absence of an adversarial
atmosphere from truth commissions as a virtue in its own right as a complete and superior
substitute for the procedures of criminal justice. Victims tell their stories in the TRC in the
knowledge that they will not receive all that is due to them, as a matter of justice. This may
in fact be damaging to self-respect and the cause of equal respect unless it is made very clear
that the purpose of the hearings is to display the injustices of the past and demonstrate the
importance of the rule of law and legal recognition. While recognition is indeed the business
of truth commissions, it is also the business of law and criminal justice, and the recognition
afforded by truth commissions should serve as a complement and auxiliary to legal
recognition. Thus, the claim that truth commissions are committed to truth as
acknowledgment and justice as recognition does not demonstrate that they constitute a
morally autonomous enterprise.
This leads to a second question that must be answered by defenders of the
transitional justice argument if their claim that transitional justice constitutes a complete
and coherent model of justice is to be sustained. Why is a commitment to punishment not a
necessary part of transitional justice? It will not do to reply that transitional justice is
concerned with justice as recognition whereas criminal justice is concerned with
punishment. As we have seen, criminal justice as normally understood also constitutes a
form of recognition, so the strong contrast suggested here between justice as recognition and
conventional criminal justice cannot be maintained. Moreover, some broadly retributivist
theories of criminal justice argue that the primary purpose of punishment is expressive, and
that its main purpose is to vindicate the innocent. Punishment, in other words, may itself be
related to a moral project of recognition a project that is carried out not only at the
symbolic level but also through the imposition of material penalties.
I want to return to this point later. All that I want to emphasize here is that the
transitional justice argument even in the very sophisticated form proposed by Andr du
Toit does not satisfactorily account for the absence of punishment from the TRC. Until
advocates of this view of the TRC offer such an account, their claim that truth commissions
embody a distinctive and coherent conception of justice must be regarded as incomplete.
It is at this point, however, that the second major defense of truth commissions rises
to meet the challenge. Defenders of the restorative model of truth commissions do offer a
justification of the absence of punishment from the practices and goals of the TRC.
According to this view, it is simply a mistake to think that justice requires punishment; rather,
the goal of criminal justice is restoration. But what does restorative justice mean? What
implications does this view of justice have for our conception of the goals of the TRC? And
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does it offer an alternative to the view that the TRC is a compromise between justice and
reconciliation, or social unity?

3. Restorative Justice and Truth Commissions

The idea of restorative justice has emerged through a series of diverse practical
initiatives to reform sentencing policies and criminal justice systems in Australia, New
Zealand, Canada, and the USA.24 It has attracted the attention of criminologists, theologians,
and legal scholars, and has come to exercise a considerable influence on the thinking of
many involved in the TRC. Indeed, the first volume of the Final Report of the TRC devotes
a great deal of attention to the idea of restorative justice, and declares that a principal aspect
of the TRCs moral task was to promote the restorative dimensions of justice.25 According
to the Final Report, perceptions that the TRC sacrificed justice were mistakenly based on the
assumption that justice must be understood as retributive justice and failed to grasp the
importance of restorative justice.26 Restorative justice is then defined as a process aimed at
achieving four goals: the redefinition of crime so that it is seen not as an offence against a
faceless state, but as wrongs or injuries done to other persons; the healing and
restoration of all concerned of victims in the first place, but also of offenders, their
families, and the larger community; the encouragement of victims, offenders and the
community to be directly involved in resolving conflict, with the state and legal professionals
acting as facilitators; the promotion of a criminal justice system that aims at offender
accountability, full participation of both the victims and offenders and making good or
putting right what is wrong.27
The core commitment of the idea of restorative justice is the idea of a kind of
restoration made necessary by an act of injury. The restoration that is sought after such a
disturbance is understood to mean the restoration of the offender, victim, and community.28
But what does it mean to restore offenders, victims, and community? To what are they to
be restored, and how is this to be achieved?
In practice, the distinctive feature of practices and institutions associated with the
idea of restorative justice has been an emphasis on victim-offender reconciliation. Advocates
of restorative justice place great emphasis on voluntary encounters between victims,
offenders, and community representatives. During these meetings, sometimes referred to as
restorative justice conferences, offenders are forced to confront the implications of their
crimes for others, and victims and community members participate, under the guidance of
mediators, magistrates, and judges, in arriving at a decision aimed at repairing damaged
communal bonds and returning offenders to the community .29 Advocates of restorative
justice see these reintegrative shaming rituals as a means of overcoming feelings of
humiliation on the part of offenders and feelings of rage and indignation on the part of
victims by involving all in a constructive communal initiative.
The ultimate purpose of this initiative is not to punish offenders, but to reintegrate
them into the community and to repair damaged communal bonds, in this way restoring
the dignity of all involved in the process. While some penalties may be necessary
components of this process of reintegration, they are justified only as steps towards
restoration.30 The process is one of moral transformation, while the goal is the
reestablishment of trust and community.
It should be easy to see why this understanding of justice has found favour with
some supporters of the TRC. In the first place, proponents of restorative justice emphasize
the morally transforming quality of participation in the intimate settings of restorative justice
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conferences. According to John Braithwaite, victims are punitive interlocutors in

traditional Western justice systems because they are denied a voice in the outcomes. When
they are given voice in a conference, they tend to go in angry and come out more forgiving
(Braithwaite 2000: 123). Offenders, too, are more likely to experience shame and remorse for
their crimes when confronted with those who have suffered as a result of their actions and
with those whose opinions carry weight with them. For Braithwaite, Part of the genius of
restorative justice institutions is that they induce expectations that we will all try to put our
best self forward (2000: 125). In similar vein, some have seen the (remarkable) capacity of
the TRC to produce transformative encounters between victims and perpetrators as its most
ambitious and valuable moral contribution.31
In the second place, both theorists of restorative justice and many proponents of
the TRC model place great emphasis on the value of community. What distinguishes the idea
of restorative justice from earlier utilitarian views of criminal law which emphasized the
instrumental goods of deterrence or social protection, or the goal of individual rehabilitation,
is its focus on the good of community and communal reintegration. Although advocates of
restorative justice are often less than clear about what constitutes the relevant community
in a given case, or how it should be represented, involvement of community representatives
is seen as a vital aspect of the sentencing process and the restoration of communal integrity
and trust is considered to be the ultimate goal of the criminal justice process.32 This notion
of communal reintegration or healing seems to provide content to the TRCs goal of social
reconciliation and to talk about collective healing and catharsis. Moreover, it is readily
assimilable to religious and therapeutic discourses within the TRC that tend to understand
reconciliation on a model of intimate personal relationships.33
It would not be an exaggeration to say that the restorative justice model of the
TRC redefines criminal justice as a process of social reconciliation, and therefore denies that a
moral trade-off between justice and social unity or reconciliation has occurred. Although this
view shares with the transitional justice argument an insistence that the TRC embodies a
morally distinctive and autonomous enterprise, there is an interesting difference between the
two positions. Proponents of the transitional justice argument who focus on the role of
the TRC in promoting justice as recognition tend to see the Victims Hearings of the
Human Rights Violations Committee as most central to this enterprise and are critical of
those aspects of the TRC process that seem to have detracted from this.34 Proponents of the
restorative justice model, such as Jennifer Llewellyn and Robert Howse, on the other
hand, deplore the structural division between victims and perpetrators that is to say,
between the Human Rights Violations Committee and the Amnesty Committee and the
absence of an opportunity for dialogue between victims and offenders and their respective
communities. Moreover, the fact that reparations decisions are taken by yet another
committee is seen as a further source of weakness. Llewellyn and Howse worry that this
division of functions results in limiting the connection between amnesty and the restoration
of the victim, and shames perpetrators without devising strategies for reintegrating them into
the community.35 Their ideal TRC, it seems, would consist of a large restorative justice
conference, in which the functions separated in the real TRC would be united.
There are three difficulties with this account of the moral significance of the TRC.
The first is suggested by the concern to unite the functions of providing victims with an
opportunity to speak and deciding on reintegrative penalties for offenders, and by so
doing, provide an object-lesson that justice is not punitive. Theorists of restorative justice
generally emphasize the voluntary character of processes of restorative justice. Offenders
and victims must choose to participate in the process if it is to secure restoration. But why
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10

should offenders make this choice, unless they face the threat of some form of punishment?
Perhaps the hope is that their moral sensibilities can be aroused without resorting to threats.
This may indeed be the case where a crime has been committed in a tight-knit community by
a member of the community. In such a case, the offender might want to reestablish standing
in the community, and might be genuinely affected by the views expressed by community
representatives.
This, however, is where talk about reconciliation in the context of the TRC can be
deeply misleading. While some amnesty applicants were concerned to be accepted into a
community to which they had once belonged but from which their actions had estranged
them, many were not. In most cases of human rights violations perpetrated by whites against
blacks, or by blacks against whites, it makes little sense to say that there was a breach of trust
with a preexisting community or that offenders came forward in order to reestablish
standing with the community. Nor is it clear that what Braithwaite calls reintegrative
shaming can function in this context, because the communities that the offender is
affiliated with are quite likely to see nothing shameful about the offense.36
The more general conclusion to draw from this is that restorative justice cannot offer
an exhaustive normative model of truth commissions or indeed of criminal justice.
Perpetrators typically came forward, not out of an uncoerced choice, but because of the
threat of prosecution through the regular criminal justice system. This gives weight to the
view I argued for earlier viz., that the proceedings of the TRC should be seen not as a
substitute for a system of punitive justice (including trials and prosecutions), but as a
complement to it.
The second problem with the restorative justice model of the TRC is related to the
issue of voluntary participation. I think that it can be agreed that restorative justice processes
function best where there is a community to which the offender wishes to be restored. In
such cases, the idea of reconciliation modelled on intimate personal relationships subscribed
to by theorists of restorative justice seems appropriate (although I shall argue that we may
still worry about the extent to which it may license community control over recalcitrant
individuals). In the case of the TRC, however, the goal of reconciliation is intended for an
entire society for an extremely divided society, moreover. As I have already noted, this
suggests that the kind of incentive for reconciliation that exists when offenders are anxious
to reestablish ties to a community, is not a resource that can be relied upon in the context of
truth commissions (although it may be present in some cases).
But a similar point may be made about the process and goal of reconciliation. While
experiences of moral transformation and reconciliation may result in the intimate settings
of restorative justice conferences, it is surely less reasonable to direct a public, society-wide
institution such as the TRC towards securing thick reconciliation and communal solidarity.
This is not to deny that the TRC hearings have often produced remarkable possibly
transforming confrontations between offenders and victims. It is simply to insist that this
cannot be seen as the chief moral purpose of truth commissions. Restorative justice
processes may sometimes secure moral transformation and reconciliation in intimate settings
for individuals and communities. They are much less likely to do so when they are
transposed to public settings and aimed not only at individuals and clearly defined
communities, but at whole societies.
The picture of restorative justice as the achievement of thick relationships of
communal solidarity, moreover, seems not only inappropriate for complex or divided
societies, but also incomplete as an analysis of justice. Richard Rorty has recently argued that
the concept of justice is simply the same as the idea of a larger loyalty an expansion of
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11

the category of who we care about (Rorty 1998: 54-55). There is some truth to this account,
but it focuses too much on how members of a dominant group may consider a claim of
justice made by someone excluded from that group as a demand to join the club. From
the point of view of the excluded or injured, their claim of justice against the dominant
group may not express a desire to join the in-group at all. It may simply be a demand for fair
treatment and a recognition of basic dignity. Should victims reconcile with perpetrators in
anything more than the minimal sense that they should recognize them as equal citizens and
bearers of rights? They may do so of course, and such reconciliations may be either
humbling or troubling (or both). But I do not think that justice requires such a reconciliation.
Reconciliation or solidarity is an independent good, when it is a good at all.
Talk of community brings me to the third problem with the restorative justice
model of the TRC. Advocates of restorative justice sometimes speak as if the promotion of
community and communal concord is the chief task of a criminal justice system. Daniel W.
van Ness, for example, describes the goal of restorative justice as the restoration into safe
communities of victims and offenders who have resolved their conflicts (Van Ness, 1993:
258). Other theorists of restorative justice, see the function of law and criminal justice as the
peaceful resolution of disputes, or as a form of conflict resolution (Cragg 1992: 178).37
There is nothing intrinsically misleading about such claims. However, when they are
presented as a full account of criminal justice, they prove to be deficient. While a criminal
justice system may indeed aim to reduce violence and resolve conflicts, this cannot be its sole
or even its basic function. For the task of resolving conflict does not distinguish a criminal
justice system from processes of civil law. Moreover, processes of conflict resolution do not
necessarily have any connection with concerns of justice. One way in which communal
conflict is all too often resolved is through the selection of a scapegoat with little attention to
the guilt or innocence of the person involved.38 As I understand it, although it may fail in
this regard, criminal justice is aimed at preventing this from happening.
The point is of course not that practices of restorative justice simply encourage the
victimization of innocent individuals. Rather, it is that to the extent that theories of
restorative justice emphasize the goal of harmony and community restoration to the neglect
of other aspects of criminal justice, they prevent us from perceiving the importance of these
other functions especially those of establishing guilt and innocence, and expressing
condemnation of the crime in order to annul it.39 This is what disturbs me about the
impatience with the conflictual or non-restorative aspects of (liberal) criminal justice often
evident in the work of restorative justice theorists or in interpretations of the TRC
influenced by restorative justice. Such impatience threatens to obscure the importance of
stringent procedures designed to establish guilt and innocence as impartially as possible, of
making a public statement about the nature of a crime, and of vindicating the innocent in a
public forum. In other words, they distract our attention from some of the basic safeguards
and goals of liberalism.
This is not to deny that practices of criminal justice need reform with respect to
giving greater consideration to victims in the sentencing process, relying less on incarceration
as a form of punishment, and integrating offenders into society by encouraging them to take
responsibility for their actions all the usual themes of restorative justice. These valuable
criticisms, however, do not amount to a comprehensive theory of criminal justice. They do
not demonstrate that we should reject the retributivist idea that punishment is a requirement
of criminal justice, but rather that we should moderate it. As far as the TRC is concerned,
the account provided by the restorative model does not justify treating it as the vanguard
of a new understanding of criminal justice completely disconnected from prosecution and
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12

punishment. Nor does it give us reason to think that the failure of the TRC to reconcile
victims and offenders and secure widespread moral transformation really was a failure.

4. Recognition, Retributivism and Truth Commissions: Annulling the

Crime

My concern so far has been primarily critical. I have argued, first, that what is due to
victims of state-sponsored injustice or political violence is not merely recognition and
acknowledgment if that is taken to mean purely symbolic recognition. I have argued,
second, that the value of justice should not be conflated with that of reconciliation or
restoration. The practical point of both theoretical arguments is to insist that truth
commissions should not be considered simply as replacements for punitive criminal justice.
Rather, truth commissions are somewhat unstable but nevertheless defensible compromises
between justice and social unity.
It would be foolish to deny that deeply divided societies need an infusion of trust, or
that some form of social reconciliation is morally desirable. The question is: what kind of
reconciliation or communal consensus is to be promoted? The answer, I think, is a
minimalist consensus about the unacceptability of political cruelty and injustice a
consensus concerning the intolerable. Such a goal retains elements of the values of both
justice and reconciliation, without confusing the two. I believe that this is what truth
commissions should promote, and they can do so only when they are supportive of the value
of criminal justice even in those areas where they fall short of its most stringent
requirements. In practice, I think this means that at least some failed amnesty applicants as
well as some who never applied for amnesty should be prosecuted or held liable for their
actions.
This is perhaps an uncomfortable conclusion. But I think that it follows from a
broadly retributivist understanding of the nature of criminal justice which denies that justice
can be purely a matter of symbolic recognition or that punishment is not required as a
matter of justice. What I want to do now, by way of conclusion, is very briefly - lay out the
basic elements of this positive view of criminal justice which has underlain my more critical
observations.
One of the criticisms I made of the theory of restorative justice was that it focused
too much on the goal of reconciliation or conflict-resolution. Although theorists of
restorative justice often claim that their account of criminal justice is more respectful of the
needs of victims than views that portray criminal justice as a matter involving the state, their
forward-looking emphasis on communal restoration may actually take the attention away
from some of the most pressing needs of victims. Victims may indeed need restitution, as
well as a restoration of confidence and a sense of security. But crucially, they need to have
their sense of dignity vindicated.
What theories of restorative justice typically omit is an account of the nature of crime
as an injury an assault on the dignity or standing of the victims. Some such account is
perhaps implicit in Braithwaites emphasis on the need for offenders to be brought to
repentance through reintegrative shaming - but it is left largely implicit. Theories of
restorative justice rarely focus our attention backwards, on the crime itself. Retributivist
theories, on the other hand, whatever their shortcomings in other respects, give explicit
attention to the seriousness of crime as an attack on individuals dignity.
Retributivist theorists such as Jean Hampton and Jeffrie Murphy build on the insight
that a crime is, among other things, an expressive act. What it signals is a claim to superiority
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13

on the part of the offender a signal that the perpetrator is of greater worth than the
insignificant victim and is not bound by requirements of respect towards the victim. As
Murphy notes,
One reason we so deeply resent moral injuries done to us is not simply that
they hurt us in some tangible or sensible way; it because such injuries are also
messages symbolic communications. They are ways a wrongdoer has of
saying to us, I count but you do not, I can use you for my purposes, or
I am here up high and you are there down below (Murphy 1988: 25).
For example, the act of rape sends the message that the victim is nothing more than
an object of use for the rapist. The act does not simply involve physical injury and the
infliction of pain, but is humiliating or degrading. It may be the intention of the violator to
make the victim feel humiliated and demeaned many of the cases of state-sponsored
violence examined by the TRC involved such intentions. But even when such acts are not
intended to be demeaning and even when they are not felt to be demeaning, the message that
the act conveys to society is one of humiliation. The claim that it makes is a claim that the
agent should not be treated like others because he is superior, and that the victim may be
treated without respect because she is of inferior standing. The claim, to put the matter in
Hegelian terms, is a claim of lordship and such a claim is a challenge to a society
committed to the values of equal citizenship and equality before the law.
Such a challenge requires a response. To use Hamptons terminology, the challenge
must be defeated; in Hegels language, the crime must be annulled (Hegel: 1967: 69). But
how? I think that two components must be present in any morally adequate response
publicity and retribution. Publicity is necessary because the challenge issued by a crime is
directed not only against the victim, but also against the values of equal citizenship and
equality before the law. Criminal justice rather than recourse through civil law is necessary;
the state, as legitimate representative of the citizens, must act to defeat the challenge to equal
respect. It is important to avoid misunderstanding on this point communal shaming is not
public in the sense that I use the word here. Rather, a public penalty is one authored by a
legitimate state.
This is where attention to the ways in which the TRC effects recognition of victims
is extremely valuable. The TRC is a public response to human rights violations committed in
the course of apartheid rule and the struggle against it. Both the state and the liberation
movement committed such violations. Both engaged in actions that denied the worth of the
victims - but with a crucial difference. In the case of the liberation movement, attacks were
carried out on civilians in a manner inconsistent with the standing of civilians according to
just war theory. In addition, those suspected of spying or collaboration were disciplined or
killed. Both of these types of action could be construed as threatening to a presumption of
moral equality. But in the case of the apartheid state, the threat is much more direct and
thorough-going, for the offenses committed were done so from a position of power and in
the service of a racist deliberately and systematically demeaning ideology and social
system.
Recognition in the TRC is aimed at vindicating all victims of humiliation; it amounts
to a public commitment to avoiding such events in the future and an affirmation of
individual rights. But it also involves more than this. For black South Africans, explicitly
excluded from a world of equal concern under apartheid, it serves as a special ritual of entry,
and a proclamation of the injustice of their exclusion. It thus functions as a symbolic
vindication of those excluded from equal respect, and a vindication of the principles of equal
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14

respect and equality before the law. So, in my view, the TRCs response to human rights
violations passes the test of publicity.
Why is this not a sufficient response to the claims of victims of human rights
violations? Why is a public statement or ritual vindicating victims not enough to defeat the
challenge of the offense against them? The answer that an expressive theory of retribution
gives is that the act of the wrongdoer functions socially as evidence that the victim is of no
account.40 The actual humiliation makes it plausible to believe in the inferior status of the
victim. This point may seem excessively metaphorical but perhaps we can understand it in
the following way. Repeated acts of humiliation and cruelty, if left unchallenged, create a
world in which the victims must live humiliated lives to take an extreme example, the lives
Jews had to eke out in concentration camps.41 One of the many terrible dangers of such a
situation is that an observer may find it easier to conclude that such victims are inferior and
deserve to be where they are.
It is therefore not enough simply to deny the truth of the message of humiliation
conveyed by the act; the evidence provided by the act must be more powerfully refuted. The
repeated acts of lordship on the part of state operatives made their claims to greater worth
plausible; to vindicate the victims, the offenders must be put in their place. The offenders
cannot be seen to get away with their claim of relative superiority. If no significant penalty
is imposed on some of the offenders, the victims (and others) may take this as further
evidence that their society acquiesces in their humiliation that it does not value them
enough to act against their tormentors.
In the aftermath of the Winnie Madikizela-Mandela hearings, Caroline Sono, the wife
of murdered activist Lolo Sono, commented bitterly that the hearings showed that there is
no justice for little people like us in this country.42 Hints made in 1998 about the possibility
of issuing a blanket amnesty raised the prospect that not only failed amnesty-applicants but
also people who had never come forward to the TRC would get off scot-free. Although this
possibility has not materialized, there have not yet been any serious attempts to prosecute
failed amnesty applicants. The criticism that the TRC process may leave intact and
unchallenged the offenders sense that they were able to act against victims with impunity
thus remains deeply disturbing. It suggests that to the extent that the recognition of victims
conveyed by the truth commissions remains purely symbolic, it will not defeat the humiliation
of victims conveyed by human rights violations.
Here I want to make a partial concession to the restorative justice model of the TRC.
Punishment is a powerful way of defeating the offenders claim to superiority and the
evidence for that claim provided by his ability to get away with it. It actually masters the
perpetrator in a manner comparable to the way that he mastered the victim and therefore
signals the refutation of his claim to mastery.43 But this punishment should not degrade the
offender or convey the impression that the victim is now the master. In other words, this
conception of retribution does not license the lex talionis, and it leaves room for considerable
downward discretion in choosing how to punish, while outlawing upward discretion that
would result in degrading punishment. Moreover, it recognizes that there are burdensome
but non-painful penalties that can defeat the wrongdoer forms of restitution, community
service, etc.44
Thus, I think there is a case to be made on behalf of the TRC model, if it is
understood as a moral compromise between justice and social unity in the way that I have
outlined. The conditional amnesty process of the TRC gives up strict punitive justice, but it
does not simply sacrifice individual claims for justice to a conception of national unity or
national interest. Rather, the Victims Hearings affirm the importance of justice and the rule
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15

of law, and function to recognize the dignity of victims and the injustice of the racist
exclusions of whole categories of people from moral concern. In these ways, while the
amnesty process does promote social unity and some degree of mutual understanding in a
way that full-scale prosecutions would not have, its symbolic functions of recognition serve
also as a tributary to criminal justice. Provided that hard choices are made, and some
prosecutions of figures named by the Final Report are conducted, we may also conclude that
the retributive goal of vindicating the innocent - the little people has not been betrayed.
We should also acknowledge the necessity of the obligation to alert those claimed to be
perpetrators of allegations involving them which the courts imposed on the TRC.45 While
this may have distracted attention from the victims stories, it serves some of the retributivist
goals of criminal justice in particular, the goal of establishing who is an offender, so as to
defeat the offenders claim to superiority successfully. We should, finally, concede the point
to restorative theorists that more needs to be done to fully vindicate victims and defeat their
humiliation than merely affirming their dignity or punishing some offenders (through
incarceration, for example).46 A greater commitment to restitution and social justice is indeed
required although this will have to involve institutions other than truth commissions.
Ultimately, truth commissions have to be viewed as part of a larger process, and the final
verdict on their role will have to wait. But their focus on human rights abuses is an essential
founding element of this process. It begins but does not end a societal process of finding
an appropriate response to past violence and injustice. Whether the global community will
be able to sustain a commitment to such responses under present pressures is now an open
question. That such a commitment is a vital resource, however, is clear. Though it is less
exhilarating than Kants promise of perpetual peace, the new remedial sensibility of memory
politics remains necessary in a world haunted by the ghosts of past atrocities and the all-too
likely appearance of new injustices.

Notes
1

See Kant 1970 (1798): 182-184.

This view is articulated in Perpetual Peace. See Kant 1970 (1795): 113-114.
3
For a valuable discussion of the Nuremberg Trials and their predecessors, see Bass 2000: 3-205. On the
Genocide Convention, see Power 2002: 17-83, 155-163. Hannah Arendts account of the Eichmann Trial
remains a classic. See Arendt 1963.
4
Ignatieff 2001: 5.
5
See Brooks 1999: 3 and Barkan 2000: 308-349.
6
On these issues, see the disturbing discussion in Gray 2003: 59-70.
7
This latter concern was of importance in South Africa, though it is not prominent in other transitions.
8
For a slightly different list, see Adam and Adam 2001: 33.
9 For helpful accounts of the TRCs history and institutional structure, see Boraine 2000and Ntsebeza 2000.
10
By far the best study of the politics surrounding the TRC is to be found in Wilson 2001. This is one of
the few assessments of the TRC based on field research. It presents a bracingly skeptical view of the
institution. See also Bell 2003.
11 I have advanced this view elsewhere (Allen 1999). In that piece, however, I do not explicitly address the
challenge of the restorative model.
12 See Teitel 1999: 274-278, Teitel 2000, Teitel 2003: 69-94.
13
Teitel 2000: 5.
14
Ibid., 21.
2

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16

15

Ibid., 66-67.
Ibid., 225.
17
See ibid., 83
18
See Posner and Vermeule 2004: 764.
19
Sanford Levinson makes the valuable point that most societies are undergoing some sort of transition, citing
the stumbling attempts of Americans to address their past of racial injustice and slavery. Levinsons point is not
that there are no differences between what have been labeled transitional and nontransitional societies, but
that the difference is typically exaggerated. See Levinson 2000: 211-216. For a related argument, see Valls 2003:
53-71.
20 For the idea of political death, see Bhargava 2000: 47.
21 To avoid confusion, I should emphasize that du Toit emphatically rejects the idea that individual healing was
the purpose of the TRC.
22 For a stimulating discussion of the nature of legal recognition, see Honneth 1996: 107-121. Honneth in fact
distinguishes three different forms of recognition loving recognition afforded by the family (especially the
mother-child relation), legal recognition, and social esteem afforded by communities of value and/or the state.
I find his arguments for the necessity of the third form of recognition unconvincing, but his analysis of legal
recognition is very valuable indeed.
23 An excellent account of the connection between making a claim and being a rights-bearer, is presented in
Feinberg 1980: 148-151.
24 Andrew Ashworth traces the origins of restorative justice reforms to a greater concern with the victims of
crime evident in the 1980s and expressed in the adoption of a charter of victims rights in Australia in 1986,
and the publication of The Victims Charter in Britain. See Ashworth 1993: 278-279. For a sample of work on
practical developments associated with restorative justice, see the articles collected in Wright and Galaway
1989.
25 See TRC 1998: 126. See also Tutu 1999,Villa-Vicencio, 2000, and Leebaw 2003: 40. Teitel also claims that the
second phase of transitional justice saw a greater emphasis on restorative conceptions of justice. See Teitel
2003: 81.
26 This point is made by Archbishop Tutu in his Foreword to the Final Report. See TRC 1998: 9.
27 TRC 1998: 9. See also van Ness 1993: 259.
28 See Braithwaite 2000: 115.
29
Ibid., 119.
30 Theorists of restorative justice differ over whether punishment has any place whatsoever in a criminal
justice system (although some who reject the very idea of punishment accept the necessity for penalties
aimed at promoting reintegration). There are also disagreements concerning the centrality of restitution to the
process of reintegration. Although these differences are important, I cannot discuss them here. Instead, my aim
is to construct a composite picture of the idea of restorative justice, based on what I take to be its most
challenging and distinctive claims.
31 For a view of this sort, see Kiss 2000: 82.
32 Braithwaite describes conferences as a meeting of two communities of care, rather than as a meeting of
individuals (2000: 120).
33 Note the tendency to explain the meaning of reconciliation by means of illustrations drawn from personal
relationships. See TRC 1998: 18-19. In similar vein, John Braithwaite explains his concept of reintegrative
shaming with reference to conflicts and forms of reconciliation occurring within families. See Braithwaite
1989: 56-57.
34 Hugh Corder points out that the Amnesty Committee of the TRC consisted entirely of lawyers, while the
two remaining committees were staffed mainly by non-lawyers. See Corder 2000: 103.
35 Their thought is that amnesty should have been accompanied by decisions as to how perpetrators could
make amends. See Llewellyn and Howse 1999: 387-388.
36 This is borne out by a recent empirical survey that suggests that attributions of blame for human rights
violations split clearly down racial lines in South Africa. See Gibson and Gouws 1999.
37 Cragg, however, does not exclude punishment from criminal justice, and therefore is less vulnerable to these
criticisms than other theorists.
38 Braithwaite gives some attention to this problem and concedes that the informality of the shaming process
may sometimes result in injustices (Braithwaite 1989: 157-161). But his response to this is to insist that the
threat is diminished if shaming is reintegrative rather than stigmatizing. While this may avert some of the
16

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17

especially unpleasant consequences of shaming, Braithwaites assertion does little to address the challenge of
avoiding such outcomes in the first place.
39 An important exception to this point is provided by the version of restorative justice offered by Jennifer
Llewllyn and Robert Howse, who argue that retributivism and restorative justice share the intuition that crime
disturbs a moral equilibrium.
40 I am relying heavily here and throughout my very sketchy discussion of expressive retributivism on the
work of Jean Hampton. See Hampton 1988 and Hampton 1992. An illuminating application of Hamptons
theory to the TRC is made in Markel 1999.
41 For an analysis of the Nazi attempt to create a world of total domination in the concentration camps, see
Arendt 1973: 437-457.
42 Quoted in Bridgland 1998: A8.
43 For a more extended argument, see Hampton 1988: 128.
44 In other words, this account of expressive retributivism weakens the traditional commitment of retributivism
to a strict version of the proportionality requirement (that the punishment should fit the crime).
45 On this point, see Corder 2000: 103-104.
46 On the issue of social justice, see Llewellyn and Howse 1999: 374 I address this question more fully in Allen
1999: 332-335.

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Presented as part of the Transnational Seminar Series, Friday 5 November, 4 pm