ISSN 1062-7421
Vol. 11 No. 11 (November 2001) pp. 541-548.


LETHE'S LAW: JUSTICE, LAW AND ETHICS IN RECONCILIATION by Emilios Christodoulidis and Scott Veitch (Editors). Oxford: Hart Publishing Co., 2001. 235 pp. Cloth $58.00. ISBN: 1-84113-109-1.

Reviewed by Maxwell O. Chibundu, School of Law, University of Maryland

"The aim of this book," says the editors of this compilation of twelve essays and an introduction, "is to explore the logic of law's disclosures and concealments, its tapping of memory and, when this is the case, its facilitating oblivion" (p. ix). Notwithstanding the abstruseness of this phrasing, the collection is a contribution to a seminal issue of our time. What principles are at work when the successors to a new order choose to engage, through law, in a substantial reexamination of the prior order? It is a phenomenon that, with the collapse of communism in Eastern Europe and the former Soviet Union, the demise of authoritarian military regimes in
Latin America and the end of South Africa's apartheid government, has come to the forefront as questions of "transitional justice." It is a subject about which much has been written and about which more is bound to be written (see Bass 2001; Boraine 2000; Mamdani 2001; Minow 1998; Robertson 1998; Teitel 2000).

The stance of the contributors, the editors assert, is to address the question "[f]rom a philosophical, primarily, perspective, [sic] and in the context of a variety of jurisdictions each with its full compliment of particularities and concerns, ... to delineate and often to challenge traditional understandings of the relation between law and justice" (p. x). These contributors, with one seeming exception, are all members of law faculties. Three of them have joint appointments in philosophy departments, and several teach jurisprudential courses. Their institutional affiliations include universities in Australia, Canada, Germany, Israel, and the United
Kingdom, with Scotland the apparent center of gravity. For this reviewer, who resides in the United States, the volume thus promised the possibility of
yielding genuinely cosmopolitan insights into a challenging jurisprudential issue of global interest. The results are mixed.

The twelve essays are placed in three categories. The first four essays, grouped under the heading "Criminal Law, Amnesty and Time," are intended to explore the relationships of the ideas of guilt and forgiveness, of penalty and responsibility. The focus here seems to be to situate the arguments for and against political amnesty within the understood jurisprudence of criminal law. The next four essays are grouped under the heading "Justice and the Past." Relying primarily (but by no means
exclusively) on issues that confronted South Africa's "Truth and Reconciliation Commission," the authors here explore the viability of obtaining justice for past wrongs through nontraditional judicial (or" quasi-judicial") mechanisms. By debating the strengths and weaknesses of "truth and reconciliation" bodies as fact-finders and repositories of memories, these essays also expose the limits of adjudication as a source of societal relief.
Finally, the last four

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essays, collected under the rubric of "Memories and the Ethics of Reconciliation" appear intended to address the question of what it means for those who live in the present to engage in "reconciliation" whether with one another or with the past that they have inherited. The contributors here try to find echoes of the hold that the past has on the present not simply in the so-called "transitional societies," but also in such otherwise seemingly "stable" societies as Israel and Australia. They pose the issue of "memory and reconciliation" both in terms of personal engagement with one's own belief systems and as the collective coming to terms of a society with its history. The twelve essays thus cover a broad swath of ideas. I shall intersperse my comments on some of these ideas within the context of their presentation in individual essays.

The central theme of the first four essays is the uneasy relationship between the idea of amnesty and that of the rule of law, and especially of criminal law. Although the individual essays approach the problem from quite different perspectives, they all recognize that disquiet over amnesty represents both the pull of the past on the present and the domination of power over guilt. A sampling of the ideas presented in the first two essays will suffice to give the tenor of these discussions.

The opening essay by Klaus Gonther uses the controversies over the "guilt" of former officials of the German Democratic Republic as the pivot for exploring the "politics of remembrance in democracies." Drawing a distinction between a policy to forgive following conviction, and a policy not to prosecute at all, he argues that the former is preferable to the latter because the process of engaging in a trial forces society to actually confront the questions of (1) why it is necessary to determine guilt and (2) whether those ends can be achieved through means that are other than and which are superior to criminal prosecutions. In the process, he revisits
familiar arguments about the underlying rationales for punishment: retribution and vengeance versus prevention and deterrence.

In an essay that relies heavily on the presumed explanatory value of bifurcations and dichotomies, Gonther draws distinctions between "legal" and "historical" attribution of guilt, asserting that the latter "avoids normative judgment," while the former is invested with determining the "causal responsibility" of the individual on normative grounds (p.8). Other breakdowns that Gonther finds relevant are those of attribution based on the personal and the situational and of internal and external perspectives. These binary divisions are invoked to establish the "domination of guilt by power" (pp. 13-15).

Burkhard Schafer's "Sometimes You Must be Kind to be Cruel," explores the conceptual dichotomy between what Schafer terms "mercy," which might also be called "pardon" or "clemency" on the one hand, and "amnesty" on the other. His interest lies in the political reality that, at least in established and stable liberal democracies such as Germany and the United Kingdom, the former is accepted as a perfectly legitimate component of the rule of law, while the latter is generally frowned on. He attributes this differential treatment in the perception that the grant of mercy is a relief that is tailored to the individual and which responds to individualized conduct. By contrast, much of the dissatisfaction over grants of amnesties may be attributed to the fact that they apply to an entire class of persons.

Schafer contends that it is an error

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for academics to buy too readily into this dichotomy. He is concerned that a consequence of presenting mercy and amnesty as distinct legal propositions is the potential polarization of the treatment of conduct that lies in the interstices of crime and politics. He uses as an illustration the debate in Germany in the 1980s of how the legal system should confront left-wing demonstrators protesting against the placement of mobile nuclear weapons in Germany. In dealing with the legal problems posed by the potential prosecution of the demonstrators, German law was polarized on political grounds between, on the one hand, those who prejudged the
demonstrators as criminals and who viewed the grant of amnesty as representing privileged treatment, and, on the other, those who believed the legal case against the demonstrators as "dubious," and viewed amnesty "as a public acknowledgement of the failure of the bourgeois legal system (p. 21). Schafer suggests that the popularity of mercy, as opposed to the sullenness with which amnesty tends to be received, may derive from the recognition that mercy is generally perceived as a gift from a superior to an inferior, while amnesty lacks that quality of genuflection. However, for those who would thus view amnesty as an exchange among equals, Schafer cautions that amnesty can act as a tool by which society successfully obliterates those memories it does not wish to recall. He thus reaffirms the view that amnesty, no less than mercy, is the expression of power by the giver over the recipient.

The first four essays clearly serve a useful purpose by reminding the reader that interrogation of the place of "amnesty" in a legal order is not one solely to be undertaken by transitional societies. Yet, for this reader, the force of many of the arguments was vitiated by the tone of their presentation. These typically passionate issues of the extent to which individuals or classes of individuals should be held responsible for conduct that, at an earlier point, was endorsed--indeed sometimes commanded by society at large--are conveyed in a rather sterile voice that too readily conflates issues of individual and collective responses. For example,
although German society has been racked by vigorous debate over the morality, legality, ethics or justice of putting on trial and, when convicted, of punishing former East German officials for their conduct and although this history ostensibly provides the backdrop for the philosophical and jurisprudential issues in criminal law being addressed in his essay, Gonther presents his philosophical claims in remarkably ahistorical prose. Schafer's essay and the remaining two essays in this segment of the book are presented with only slightly more color and location.

The four essays that comprise Part II of the collection dwell primarily on the lessons to be learned from the South Africa truth and Reconciliation Commission. Indeed, it can be said that all twelve essays have, as the paradigmatic instance of the relationships of law, amnesty and reconciliation, the operation of South Africa's Truth and Reconciliation project. The tone of the opening essay, David Dyzenhaus' "With the Benefit of Hindsight: Dilemmas of Legality in the Face of Injustice," is a break with the abstract and impersonal tone of the essays collected in Part I. Using the story of Bram Fischer, a highly respected White South African lawyer who
had challenged the South African legal order in the mid-1960s, the essay explores the relationships of professionals like lawyers and judges to the enforcement of questionable laws and, therefore, to the maintenance of justice. Bram Fischer was a skilled lawyer who had

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represented opponents of the South African government, including Nelson Mandela. He was himself charged with subversion. He was nonetheless granted bail so that he could travel to the United Kingdom to argue a case before the Privy Council. He then returned to South Africa, but he chose not to appear at his trial. He explained his behavior in an extended letter to his lawyer, a letter that was available to the South African legal establishment. Bram Fischer's basic point was that fidelity to the rule of law by a member of the legal profession might require the professional in fact to violate the law. He was disbarred on the ground that he had engaged in conduct unbecoming a lawyer, but as Dyzenhaus points out, the propriety of the disbarment which everyone in hindsight now condemns, cannot be disposed of on the ground that Fischer's professional colleagues were unaware of the arguments against his disbarment, and their conduct simply be condemned on the ground that they were immoral persons.

For Dyzenhaus, the challenge that the Bram Fischer story presents is how to unearth the relationship between law and justice. The actors in the Fischer story were well-informed and highly trained persons. The issues in question were well understood. Why did Bram Fischer take the path that he did, and why did his colleagues--most of whom respected him highly--choose to disbar him notwithstanding the arguments that he advanced? Does one represent the ideal of justice and the other of law? In what sense is the distinction between law and justice meaningful, and is that distinction really available only as a matter of hindsight or was it contemporaneously obvious to the participants? Because Dyzenhaus' essay is written in very accessible prose, the reader is invited to focus on these sort of issues
rather than on trying to comprehend metaphysical arguments about law, justice, morality and the like.

The claim of Francois Du Bois, in "Nothing But The Truth: The South African Alternative to Corrective Justice in Transitions to Democracy," is that those who see the South African Truth and Reconciliation Commission as a model for avoiding problems of "impunity" on the one hand, and of "victor's justice" on the other, are likely to be disappointed. In his view, proponents of this "third way" see the obtaining of "truth" as the justified end that permits victors to forego their right to impose their notion of justice, and which makes less debilitating the moral cost of impunity. In the South African case, "revealing what was done by whom would establish
responsibility for past injustices and give recognition to individuals who had been wronged, without simultaneously allowing those who now commanded the resources of the legal system to use it to further their own ends, or tying up scarce resources desperately needed for social development" (p. 93). Although acknowledging that, "it is easy to see why this would have appeared attractive at the time," Du Bois nonetheless concludes that the third way is a misleading bend in the road to justice. If as carefully thought-through an experiment as that of the South African Truth and Reconciliation Commission is unable to avoid having to choose between "might making right," and the immunization of individual and collective wrongdoing, it follows that the quest for a third way is illusory.

The thrust of his argument is to be found in the following statement, "The task of pursuing reconciliation through truth pulled the Commission's operations in two, opposed, directions. Reconciliation signifies

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the bringing together of adversaries, the creation of some commonality, the transcending of at least some differences. It also requires equality between the adversaries, since it would otherwise amount to no more than a coerced acceptance of the past. Hence the truth required for reconciliation is one that restores to victims the dignity needed to face perpetrators as equals, and accordingly, as the TRC realized, acknowledges victims as victims. This, however, implies that the distinction between victims and perpetrators should be kept alive, emphasized even. Thus arose a tension between process (the search for truth) and outcome (reconciliation): the truth necessary for reconciliation also threatened its achievement" (p. 103).

In the context of the South African experiment, these claims are reasonably supported. Du Bois contends and demonstrates, for example, that the results of the TRC process are in most respects indistinguishable from the results that one would have obtained through judicial proceedings--excepting, of course, that judicial determinations would have been followed by compliance edicts. This convergence of results, however, is not fortuitous. A crucial factor in the supporting evidence invoked by Du Bois is the interplay of the insistence by the South African courts of "procedural rectitude" by the TRC. One wonders, however, if the interplay between permanent judicial tribunals and ad hoc bodies like the TRC is an inevitable component of the third way. If it is, then Du Bois' arguments, while by no
means otherwise unimpeachable, cannot be dismissed lightly. However, can that interplay be done away with? Is it possible to create ad hoc tribunals that are entirely insulated from judicial interference and at the same time remain true to the concept of legality?

Adam Czarnota's "Law As Mnemosyne and as Lethe: Quasi-Judicial Institutions and Collective Memories," is introduced as a distinctly different subject matter from Du Bois' essay. The question, "Is law in contemporary societies changing the past?", is asserted as the subject matter for investigation, and the claimed conclusion is that "law tries to control the present and the future by expanding itself into the past through an attempt, if not actually to regulate collective memories, then at least to
provide a legal framework that might allow the modification of collective memories" (p. 115). Yet, the essay shares more in common with Du Bois than is suggested by this acclaim or acknowledged by the writer. That legal institutions have been confronted with the "problems that arise out of the task of coming to terms with the consequences of the injustices committed in the past," Czarnota observes, is no longer limited to the seemingly aberrant situations created by World War II such as the Holocaust and Communist rule in Eastern Europe, but such is now also a familiar phenomenon in such established liberal democracies as Canada and Australia. "The most interesting elements in that process is the involvement of law in settling accounts with the past," asserts Czarnota, and "in all these cases involving truth finding and legal redress, procedures are employed that extend beyond the framework of traditional legal institutions" (p. 120).

Although the essay poses several interesting questions relating to the use of legal and quasi-legal institutions to address such problems, and although Czarnota contends that, "These issues are best addressed by institutions which are not within traditional law or the legal system" (see pp. 124-5), the essay is notable for its failure to provide any guide on how answers might be obtained and evaluated. What is

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clear is that Czarnota reaches a different conclusion from that reached by Du Bois on the efficacy (if not desirability) of quasi-judicial institutions. In the former's view, these quasi-judicial bodies, unlike traditional legal institutions) legislative, executive and judicial), "possess institutional structures and characteristics which are able to respond at the same time both to the need for radical change and the need for substantive continuity in dealing with the complicated nature of collective
memories" (p. 127). This is a thesis, however, that is not satisfactorily explained or defended, and it appears particularly weak juxtaposed against its apparent rejection by Du Bois' concrete examination of the work of the South African Truth and Reconciliation Commission.

Jennifer Balint, in "Law's Constitutive Possibilities: Reconstruction and Reconciliation in the Wake of Genocide and State Crime," raises explicitly a tension inherent in the divergent positions of Du Bois and Czarnota. Essentially, the question is whether "reconciliation" is a good in and of itself that warrants the compromising of otherwise accepted processes of the legal order? This seems to me to be a very important question, and one to which relatively little attention has been given in academic scholarship thus far. At first blush, this raises the classic dilemma for liberals of utilitarian persuasion. Should an individual's procedural rights be sacrificed for collective social good? Unfortunately, the serious scrutiny, which the question deserves, will not be found in this essay. Rather, this is an essay that contains interesting individual insights, but this reader could not apprehend the coherence of whose themes. The ideas meander among barely explained legal arrangements and structures in Rwanda, South Africa, Australia and Eastern Europe and between issues of individual and collective responsibility and of the distinction between legal and political discourse to the process of reconciliation. However, at the end of the tour, this reader remained in ignorance as to the fit of these arguments
inter se or with the broader themes of the collection.

Defining what constitutes "reconciliation" appears to be the transcending theme of the essays that make up Part III of the collection. The treatment of this theme, however, is uneven. Although individual essays possess disparate interesting insights, those insights merit little commentary in a review that has already gone on too long. One essay, however, stands out for its contributions to the connecting themes of the book.

Leora Bilsky's "Justice Or Reconciliation: The Politicization of the Holocaust in the Kastner Trial," recounts the facts of a politically significant trial held in Israel in the 1950s. It draws from that trial lessons that she deems to be pertinent to the part that claims of past injustice play in the political reconstitution of a society. The trial was that of a criminal libel suit brought by the State of Israel against a holocaust survivor, Malchiel Gruenvald, for asserting that a politically influential Israeli, Kastner, was guilty for the death of many Jews who had died in Nazi concentration camps. The basis of the claim was that Kastner, who had been an influential Hungarian Jew prior to immigrating to Israel, by having negotiated for the freedom of some Hungarian Jews, including relatives and friends, had thereby condemned others Jew--notably those without financial resources or influential connections--to the fate that befell them in concentration camps.

In her essay, Bilsky contends that the plausibility of these claims was legitimated

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by the adversarial structure of litigation in Israeli courts, and the ability of the defense lawyer to take advantage of those structures to anticipate and reinforce extant political cleavages in Israeli society. In her submission, Bilsky contends that the structured mode of evidentiary presentation that characterizes adversarial trials means that the truth that emerges through the legal system is, at best, partial. It is a truth that is shaped by the skills of the lawyer, rather than by the "facts" on the ground.
This was a skill that, in Bilsky's telling, Shmuel Tamir, the defense lawyer, possessed, but apparently not the Israeli Attorney-General's office. And Tamir in shaping that truth properly read and relied on the political proclivities of the fledgling Israel as a Zionist state.

Equally consequentially, Bilsky argues that the success of Tamir in hijacking a criminal libel case for political ends was, given the limitations of legal process, to obscure the asking of fundamental political questions. She contends, I think correctly, that the trial process reduces historically complex and morally ambiguous realities into a simplistic binary opposition of right and wrong, guilty and innocent. However, she does not explain why the legal trial precluded the interrogation of and facing up to those realities in fora other than the courtroom. For example, do legal proceedings somehow delegitimize taking up the same issues in the political
arena? Put another way, why should one view the Kastner trial as amounting to anything more than the giving to Caesar of what's Caesar's, with other avenues still available for exploitation?

Bilsky's arguments are well-crafted, but they also make for thought-provoking challenges to the basic thesis of these collection of essays. How much real--as opposed to imagined--control exists in the capacity of the law, viewed as an instrument of the present, to reshape the past? And what is the role played by the contemporary possession of power in that process? Can one really explore the relevance of law to justice without paying heed to the socio-economic and political institutions within which law functions? In other words, must not a philosophy of law's capacity and responsibility to reshape the past, at least pay some homage to the fact that law itself is not an independent actor, but is immersed and may indeed be subservient to other forces within society? I am not suggesting that the volume ought to have contained contributions that specifically address these questions, but I am amazed at how little recognition of the embedded character of law and justice is displayed by the essays represented in the collection. Indeed Bilsky's recognition that the court room might be but one gallery for the partial sculpting of society illuminates the remarkable absence of that appreciation by the other contributors to the collection. I think it is fair to say that a common theme that seems to undergird all of the contributions is that of law as an isolated but hegemonic island which rules and superintends the manipulation of the past by the present.

As indicated at the outset of this review, the content of LETHE'S LAW is broad. Any one who is interested in brief but self-contained essays on examining the relationship of law to justice via the medium of how the present attempts to shape the future by reconciling the past to itself is likely to find in the volume an essay that trenchantly considers some aspect of that relationship. It is, however, a book in which one's choices will have to be discriminating. It is also a book that could have benefited from closer editorial scrutiny with regard to

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language, in the juxtaposition of essays, and in the cross-referencing of ideas. However, on the whole, this is a collection of essays from the reading of which scholars of jurisprudence and keen students of moral philosophy will derive substantial benefit. The contributors, whether arguing for a more charitable view of amnesty that locates it well within the mainstream of criminal jurisprudence, or arguing against the dominant vision of truth and reconciliation as panaceas for wounded societies, have not overstated their claims. Rather, they've left ample room for the reader to arrive at an independent but informed judgment.

REFERENCES:

Bass, Gary J. 2001. STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS. Princeton: Princeton University Press.

Boraine, Alex. 2000. A COUNTRY UNMASKED: INSIDE SOUTH AFRICA'S TRUTH AND RECONCILIATION COMMISSION. Capetown: Oxford University Press.

Mamdani, Mahmood 2001. WHEN VICTIMS BECOME KILLERS: COLONIALISM, NATIVISM AND THE GENOCIDE IN RWANDA. Princeton: Princeton University Press.

Minow, Martha. 1998. BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASSVIOLENCE. Boston, Beacon Press.

Robertson, Geoffrey. 2000. CRIMES AGAINST HUMANITY: THE STRUGGLE FOR GLOBAL JUSTICE. New York, The New Press.

Teitel, Ruti G. 2000. TRANSITIONAL JUSTICE. New York: Oxford University Press.

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Copyright 2001 by the author, Maxwell O. Chibundu.