A Lockean Approach to Transitional Justice

Abstract

Locke can speak interestingly to the problem of transitional justice, that is, how to deal withthose who committed human rights abuses under authoritarian regimes once those regimes democratize. The essay focuses mainly on the “hard case” of transitional justice, in which former members of an authoritarian regime retain significant capacity for violence, and so the ability to threaten the new polity if attempts are made to punish them. Locke's law of nature suggests that human rights abusers should be punished, although not at the expense of social stability.But it also grounds the apparently un-Lockean claims, consistent with some of Locke's occasional writings, that abusersquaeschewers of reason may be treated as beasts that do not enjoy natural rights, and that little account need be taken of the victims of such abusers. Using Locke's thought in this way both illuminates it and clarifies what is at stake in the debate about transitional justice.

Retribution and Restitution in Locke’s Theory of Punishment

“…] (TT,2.11) Individuals have the right to press for restitution even in cases where doing so does not immediately benefit the public. Locke does not specifically consider limit cases where a weak state, perhaps after a regime change, might be destroyed if it permitted individuals to push for the full restitution they were due, and Stacey (2004) is likely right that Locke would have permitted some flexibility in such cases. Locke's doctrine of prerogative does, after all, allow valid legal claims to be set aside when pressing needs call for it.…”