CLOSING THE BOOKS: TRANSITIONAL JUSTICE IN HISTORICAL PERSPECTIVE

Vol. 15 No.8 (August 2005), pp.749-753

CLOSING THE BOOKS: TRANSITIONAL JUSTICE IN HISTORICAL PERSPECTIVE, by Jon Elster. New York: Cambridge University Press, 2004. 310pp. Hardback. £40.00/$70.00. ISBN: 0521839696. Paperback. £17.99/$24.99. ISBN: 0521548543.

Reviewed by Matthew Holden, Jr., The Isaiah T. Montgomery Studies Project, Inc. Email: itmproject@aol.com .

CLOSING THE BOOKS is a fascinating examination of matters important to both law and political science. “Transitional justice is made up of the processes of trials, purges, and reparations that take place after the transition from one political regime to another” (p.1). Jon Elster covers a vast amount of unfamiliar material, so I shall sketch briefly what he covers.

Teaching and Research 1: Elster’s Methodology

Elster’s methodology is foreshadowed in his earlier work, but the central methodological point in CLOSING THE BOOKS is to understand “justice” as it exists in the decision-making criteria of those asserting authority.

I find it convenient to think of this book as if one were teaching from it, or as if one were using it to frame research.

Teaching: Content

The book is divided into two Parts and nine chapters. Part I, “The Universe of Transitional Justice,” contains three chapters. Chapter 1 “Athens in 411 and 403 B. C.,” deals with disruptions and restorations of Athenian democracy in the fifth century BC. The transition in 411 was a combination of regime implosion and insurrection The dominant aim was retribution. Democracy was restored, but it was not full democracy. Initially, it was of the Five Thousand, and after that came full democracy, and prosecutions of the oligarchs widened (p.8).

The democracy was, however, discredited and displaced in a few years. Sparta first dictated a new oligarchy (p.10), but soon there was an uprising. Sparta then dictated a treaty of reconciliation. Elster discusses in exquisite details the provisions of this treaty, and the way that the provisions benefited one side or the other (p.11). In short, in 403 the dominant aim was reconciliation. Elster admits he does not know why this moderation occurred. It may have resulted from Spartan influence, a deal with oligarchs, or it may have represented free choice by democrats.

Chapter 2 deals with “The French Restorations in 1814 and 1815.” The Allies (Britain, Austria, Prussia, Russia) defeated Napoleon. They could have chosen anyone they wanted. There is a delicious pleasure watching politicians “deal,” and they would have made good subjects for Robert Caro.

Talleyrand persuaded the Tsar to accept a restoration, not some new monarch from outside. “He further persuaded Napoleon’s senate to express a wish for the return of the Bourbons, since the Allies would not accept any solution that could not be presented as desired by the [*750] French nation” (p.25). “The senate . . . stipulated strong political powers and extravagant economic privileges for the existing senators.” This brought Louis XVIII. It also brought back the angry aristocrats of old, who wanted their old privileges and property, which other people now possessed.

The king, in turn, would not sanction trials or political justice (justice via executive discretion), and only minimal changes in public administration (p.30). Napoleon escaped and was defeated at Waterloo. Whatever the electorate was, new elections brought in an assembly committed to the old crowd. Moreover, the king’s brother ran a de facto government in the Vendee, which was reactionary, brutal and murderous.

Chapter 3, “The Larger Universe of Cases,” sums up thirty odd cases. The Stuart Restoration occurred in 1660, with Charles II becoming king. Elster says that this was similar to the Bourbon restoration, which took place more than 150 years later. Charles’ pre-return tone of moderation was repudiated by extremists in Parliament.

The chapter also considers countries under colonial rule undertaking successful wars of independence. America and Algeria are Elster’s two cases, to make the point that such countries punish indigenous collaborators. This analogy is absurd. There was almost no similarity between the Muslim Algerians, who supported France, and the American loyalists. The American loyalists were ethnically and culturally identical to the Patriots, except that they never made the conversion to total independence. The relevant point is that they lost a good deal of property with their choice. Elster offers some calculations as to compensation to loyalists, but it is not clear whether the compensation came from the Crown to those who had stayed loyal or from the United States for property lost.

The chapter also treats the formerly occupied countries of Germany and Italy, Japan, as well as the countries of Eastern Europe, Latin America, and Africa.

An interesting exercise would be to take the author’s fourfold classification of exogenous regime/endogenous regime on one axis and exogenous process/endogenous process on the other, and allocate the cases without first looking at what Elster does with them. A second exercise would be more elaborate. It would be to array all the thirty odd cases on one axis and then create three columns on the other, representing trial, purges, and reparations. Elster does not provide such a scheme overtly, though he may have it implicitly in mind.

Chapter 4, “The Structure of Transitional Justice,” is a taxonomic effort, dealing with motivation, institutions, levels (supranational institutions, nation-states, corporate actors, and individuals), agents (wrongdoers, victims, beneficiaries, helpers, neutrals, promoters, wreckers), and decisions (legislative, administrative, and legal.)

The motivation of justice – the wish to see justice done – is seen as a trichotomy of reason, interest, and emotion, manifest in the institutions of justice. The “institutions” are not specific organizations so much as institutional forms or types of judgment: political justice (purest executive discretion), administrative justice, and legal justice (some kind of legal process in court) (p.84). [*751]

The institutions produce “decisions” that are not necessarily reflective of deliberate judgment. Most truth commissions have not even named perpetrators, let alone punished them. South Africa’s Truth and Reconciliation Commission is the major exception. If decision-makers conclude that either retribution or reparation is called for, then other political and procedural decisions also are called for. Elster again discusses in detail the decision-makers’ criteria and judgments.

Chapter 5, “Wrongdoers,” classifies wrongdoers, from most culpable to the least (fanatics, opportunists, and conformists), justifications for wrongdoing “offered with a claim to legal validity” (p.143). Elster points out that these often are classic and self-serving excuses. Among them, the following seem notably important in a range from the lesser evil argument that “If I hadn’t done it, someone else would have done it with even worse outcomes,” to the futility argument that “If I had refused, it would have made no difference.”

If one were teaching administrative law or public administration, one might find Elster’s view that there is a core of truth in some of these justifications to be interesting and provocative. The Dutch Government, he says, issued secret instructions in the event that the Germans took over: “‘civil servants had to stay on in the interest of the population.’” He also offers the example of France. Some “functionaries who might desire to step down might be asked by the resistance to remain in place and, as a result, be acquitted of charges of collaboration after the liberation” (p.145).

Chapter 6 deals with “Victims” (p.166) and carries the reader through a refined discussion of “material suffering” (p.168), “personal suffering” (p.175), “intangible suffering” (p.180), and of the burden proof to be offered when claims are being made. If nothing else useful were to be found in the book, undergraduates in the United States should be invited to read, reflect, and discuss seriously the pages on burden of proof (pp.183-187).

Chapter 7, “Constraints,” would be a wonderful chapter to discuss with overenthusiastic undergraduates who are hold to the belief that “right is right” and “wrong is wrong,” and who believe that they will always be clever enough to know what to do.

Elster examines the interest of outgoing parties in self-protection. This is notably important where transitions have been negotiated, when an important question is whether they should take seriously (believe!) what they are promised: “Under conditions of democracy and rule of law, however, negotiators may be unable to deliver on any promises they might make on behalf of future legislators and courts” (p.190). This was a problem in Argentina and Uruguay, where deals had to be made (and were hard to make and keep) that the military would not be penalized.

Elster offers an exciting discussion of credibility if the winner-negotiators are expected to be in power. The third party role is sometimes important in the contemporary world, as it was in ancient Greece and in the French restorations. Deal making was even more obscure in former Soviet countries, where the outgoing elite had control over nothing but information, yet somehow were able [*752] to make good arrangements for themselves.

The chapter also discusses economic constraints, where (in effect) the fear of capital flight limits what incoming elites can do. Even purely administrative constraints that one might not have considered are pertinent. Judicial administration, often not much noted by American scholars, can be a crucial factor. It is hard to conduct trials if there is an insufficient supply of judges.

I shall bypass the interesting discussion of “politics” in Chapter 9, which is narrowly focused on the electoral and strategic interests of political parties. I conclude with reference to Chapter 8 on “Emotions.” This chapter particularly commands attention as Elster tries carefully to formulate the relationship between emotions and actions, a distinction between urgency (allowing mature, prudent judgment) and impatience (“act now!”). The argument is carefully developed that emotions decay with time, although there is surely some need to consider the development of settled memory, prejudice and social doctrine. Perhaps we shall have some further tests of Elster’s argument as Saddam Hussein approaches trial.

Teaching and Research 2: Where Elster’s Material Leaves Troubling Questions

Elster’s avoidance of theorizing makes it hard to evaluate the evidence he presents. He does assert explicitly that winners do not punish their own. He also makes clear that compensation is much more likely for material suffering than for personal suffering. Nonetheless, the “historical perspective” is insufficiency utilized.

What known cases were not examined?

One of the reasons for considering Athens was to show that transitional justice is not limited to modern regimes or to democratic regimes.

Why not Rome?

Rome had more than its share of revolutions (Finer 1997). It would be remarkable if it never had the combination of trials, purges, and reparations.

What potential cases might have been examined?

Elster says that “As there was no serious effort to carry out either transitional justice or a transition to democracy in a very meaningful sense, I shall not include the creation of the Weimar Republic among my cases here” (p.48.) That seems intellectually unsatisfactory. I should have thought one would want the cases where transitional justice might have been considered, or was considered, but did not work, in addition to those presumed by the author to have been successful.

That is a rationale for a very different case. U.S. Reconstruction in the post-Civil War era was a form of transitional justice that was quickly abandoned. A proclamation of freedom for African slaves started the process. A policy of depriving the white elite of voting privileges for a time and demanding new pledges of allegiance was adopted. The granting of the suffrage to the freed Africans was made law.

In this case, as in the Weimar case, one is drawn to the impediments as subjects to be studied. There was a white resistance that may have been as significant as that led by King Louis XVIII’s brother in the Vendee. The killings of blacks by whites undoubtedly exceeded the reported killings in the [*753] “white terror” in France; several hundred individuals were killed (p.46). In fact, in at least a few cases, of which I know, massacres produced a higher death rate (per thousand population) than the 9/11 disaster. The effective restoration of the whites to power took place, and it was almost as if the 15th Amendment had never been adopted (Holden Forthcoming).

What is the measure of when “transitional justice” works?

The 1814/1815 decisions allowed the old aristocracy to return, to indulge their aggrieved sense of memory, and to make more extreme demands than the king himself favored. They secured some compensation, although not all that much, but they did not prevent the return of the Bonapartes.

Melissa Nobles (2001, at 468) writes of “legal and political decisions devised by incoming democratic regimes to address the excesses of outgoing repressive regimes and the harms endured by their victims” (emphasis added). Restorative justice, as used by Elizabeth Kiss, from the South African Truth and Reconciliation Commission, is “concerned not so much with punishment as with correcting imbalances, restoring broken relationships – with healing, harmony, and reconciliation” (quoted in Nobles 2001, at 468).

The reparations practices that Elster reports deal largely with benefits that people had on the account books. “The French Revolution did not punish the former elites for past wrongdoings, nor compensate the peasantry for what they had suffered.” Is the generalizable inference that “transitional justice” has had little or nothing to do with redistributive policy? If material compensation is not in the cards, then other issues of legitimacy arguably are open.

REFERENCES:

Finer, Samuel E. 1997. THE HISTORY OF GOVERNMENT FROM THE EARLIEST TIMES. New York: Oxford University Press.

Holden, Jr., Matthew. Forthcoming. THE REPUTATION OF ISAIAH T. MONTGOMERY: THE GREATNESS OF A COMPROMISED MAN. Charlottesville, VA: The Isaiah T. Montgomery Studies Project, Inc., for Mississippi Valley State University.

Nobles, Melissa. 2001. Review of Robert I. Rotberg and Dennis Thompson (eds.). TRUTH v. JUSTICE: THE MORALITY OF TRUTH COMMISSIONS. Princeton: Princeton University Press, 2000. 95 AMERICAN POLITICAL SCIENCE REVIEW 468-469.

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