Transitional Justice and the Quest for Democracy: A Contribution to a Political Theory of Democratic Transformations

Abstract

The paper seeks to contribute to the transitional justice literature by overcoming the Democracy v. Justice debate. This debate is normatively implausible and prudentially self-defeating. Normatively, transitional justice will be conceptualised as an imperative of democratic equal concern. Prudentially, it can prevent further violence and provide an opportunity for initiating processes of democratic emotional socialisation. The resentment and indignation animating transitions should be acknowledged as markers of a sense of justice. As such, they can help the reproduction of democracy. However, their public expression must be institutionally filtered through democratic norms. The consistent institutional instantiation of equal respect can educate and recuperate negative emotions for democracy.

Introduction: On irreconciliation

“…It assumed that by encouraging forgetting and forsaking feelings of revenge among survivors, the nation would be liberated. As a result, feelings of resentment (Mihai 2010; Schaap 2005) among those wronged remained unaddressed. Instead, individual suffering was thus brought back to the public space and shared – it became part of a narrative of national redemption.…”

“…Recognizing the significance of resentment on the part of a collective who have been wronged, scholars (e.g. Mihai 2010; Schaap 2005) invoke a third‐party mediated retribution to recuperate ‘negative emotions for democracy’ (Mihai 2010: 183), to address this anger, and to acknowledge this injustice. In the ‘triad of conflict’ response framework (of management, resolution, and transformation), the study of the peaceandconflict continuum is today more cognizant of complexities, but with a focus on accommodation, co‐existence, ‘conflict calming’ (Mac Ginty 2019: 269), and an ‘adaptive peacebuilding approach’ (de Coning 2018) focusing on the cohesion and resilience of local and national institutions.…”

Emotions and the Criminal Law

“…The dichotomy between cognitivist and physiologist accounts of emotion permeated this field as well, yet cognitivists seem to dominate the more normatively oriented research in this area. While some earlier studies warned against the destabilising, irrational force of emotion in the wake of oppression (Ackerman 1992, Linz and Stepan 1978), many others embraced the moral dimensions of forgiveness, resentment, indignation, shame, and grief as defining the circumstances of justice in the wake of violence (Govier; Walker; Brudholm; Mihai). Debates about the appropriate institutional mechanisms for engaging the past could not avoid the issue of emotional mobilisation.…”