RADICAL EVIL ON TRIAL by Carlos Santiago Nino, New Haven, Yale University Press, 1996. 220 pp. Cloth $27.50

THE CONSTITUTION OF DELIBERATIVE DEMOCRACY by Carlos Santiago Nino, New Haven, Yale University Press, 1996. 220 pp. Cloth $30.00

Reviewed by Marcus Faro de Castro, Department of International Relations, Universidade de Brasilia, Brazil.
 

The gulf between theory and practice often brings disappointments both to those immersed in political action and to those reflecting upon its wider moral and theoretical significance. In RADICAL EVIL ON TRIAL and THE CONSTITUTION OF DELIBERATIVE DEMOCRACY by the late Carlos Santiago Nino, the reader will find a remarkable effort to bridge the gap between the theory and practice of contemporary constitutional law and human rights policy.

Nino died suddenly in 1993, a few months before his 50th birthday. He was not only a lawyer and a gifted scholar, but also a man deeply involved in the recent political events of his country, Argentina. In the 1980s he became an intellectual activist committed to the cause of redemocratization of Argentine politics and eventually served as an advisor to President Raul Alfonsín on human rights and constitutional reform.

RADICAL EVIL ON TRIAL is concerned with what the author terms "retroactive justice". It focuses on theoretical and practical problems related to the punishment of massive human rights violations in general, and specifically in Argentina during the 1980s. Its broader aim is to examine why failures in the punishment of human rights violations occur in diverse settings.

The book is well organized in five chapters. Chapter one addresses the historical experience of human rights violations in countries around the world. It offers very brief but useful factual accounts of the often unsuccessful or partially successful efforts to punish human rights violations in Europe since the end of World War I. The brief narrative starts from the failed political initiatives by the allies to try the Kaiser before an international court in the interwar period, and proceeds to offer an account of the Nuremberg tribunals and their sequels in Austria, Italy, France, Belgium, Japan and Eichman’s trial in Jersualem in the early 1960s. The chapter also offers cursory descriptions of the initiatives to punish human rights violations in the democratic transitions of Southern Europe, Eastern Europe and Latin America, while also briefly covering retroactive justice initiatives in Africa and Asia. Chapter two offers a more detailed, and often personal, account of the Argentine experience with retroactive justice. The historical chapters are not intended to be thorough, but are aimed at summarizing worldwide experience with retroactive justice and at pinpointing concrete examples of the political difficulties and legal, and sometimes moral, conundrums that arise in the punishment of massive human rights violations in their concrete historical settings. These levels of difficulty – political, moral and legal – are more fully explored in their theoretical dimension in the remainder of the book.

The chapter on the Argentine experience with retroactive justice is more elaborate in its conceptual framework. It describes four social and political conditions that, in Nino’s view, prevail in Argentina. These conditions are the ideological dualism between traditionalism and liberalism, a corporatist political ethos, "anomie" or a law-disregarding political culture, and the concentration of power characteristic of the Argentine "hyperpresidential system of government". According to Nino, the changed attitudes towards human rights violations fostered by the attempt to achieve retroactive justice through Alfonsín’s firm human rights policy and by the movement led by the National Commission on Disappeared Persons, may have helped to reshape the moral consciousness of Argentine society and to overcome the conditions that would be compatible with continuous impunity.

In discussing the moral problems inherent in the promotion of retroactive justice, Nino essentially faces the philosophical question of whether and on what moral grounds punishment for human rights abuses may or must be pursued. Nino balances the retributivist against the preventionist theory of punishment. He concludes that the latter (i.e. the view that punishment is legitimate if it prevents a greater evil to the society than the punishment itself) is better suited to morally uphold the realization of trials for human rights abuses, "provided that the trials will counter those cultural patterns and the social trends that provide fertile grounds for radical evil". Now this edifying function of trials can be achieved, Nino contends, only if they are conducted fairly, that is to say, legally. Hence the relevance of the discussion of the technical legal aspects of trials for human rights abuses, such as choice of law and the handling of different types of defenses (lack of agency, statue of limitations, state of war, due obedience and so forth).

On the general political level, Nino examines the problems of achieving retroactive justice in contexts of democratic transition. He considers several positive and negative factors that may facilitate or hinder punishment of human rights violations in such contexts. These factors include the political nature (coercive or consensual) of the transition, its constitutional nature (rupture or continuity), the degree of diffusion of responsibility among perpetrators, the presence or absence of leadership, and so forth. Nino brings into his discussion authors such as Samuel Huntington, Juan Linz and Bruce Ackerman in order to address the question which is central for politicians concerned with the strategy of human rights policy-making: should democrats punish or pardon? Nino’s concern at this point is with the overcoming of what he calls "epistemic moral elitism" (a sectoral claim of general moral truth) through public "deliberation that is provoked and enriched by the trials" in a process of self-transformation of collective social consciousness. Nino therefore underscores the positive effects that trials and investigations of human rights abuses may have on democratic consolidation. He thereby limits the reach of perhaps overcautionary arguments of authors such as Huntington and Linz.

The idea that there are moral thruths is at the center of THE CONSTITUTION OF DELIBERATIVE DEMOCRACY. In this book, Nino goes in some depth into several theoretical discussions of the nature of contemporary democratic politics and hopes to derive from these discussions his own theory. He also intends to provide theoretically grounded prescriptions to institution builders. His view of democracy derives from his concept of constitutionalism, which he understands to be the result of the interplay of three elements: the commitment to democratic participation, the commitment to the protection of rights and the force of the "historical constitution". His analytical strategy is to frame his discussion by reference to the "justificatory discourse of lawyers and judges". The goal of the book is therefore to try to "explain how the democratic process, in combination with the respect for the historical constitution and recognition of rights affects the premises of practical reasoning through which a judge, a government official, or even a common citizen attempts to justify a constitutional decision".

Nino’s conception of historical constitution refers to a social convention or practice which he characterizes by analogy to the collective and intergenerational process of the construction of major architectural and cultural structures like cathedrals. On the theoretical level, he tries both to empty it from all its possible communitarian and traditionalist content and to avoid its reduction to a formalistic construct. His notions of democratic participation and of rights protection or limited government, in turn, are tied to the thought of Rousseau and to that of Locke respectively. Thus Nino not only lends qualified historical substance to constitutional argument but also combines it with a theory of abstract rights and with a strong concern for justificatory validity of participatory interaction, in order to develop his own theory of democracy. His clever analysis of different theories of democracy summarizes the arguments of utilitarians, elitists, pluralists, consensualists, participationists, and others. A major analytical distinction insisted upon by Nino is that between theories of democracy that propose or require some kind of transformation of people’s preferences and those that take such preferences as merely given. He rejects the latter and elaborates upon the former type of theory.

Nino’s own theory presupposes dialogue as a means of containing selfish interests and is also "epistemic" in that it assumes the possibility of access to the knowledge of moral principles. He explicitly situates his theory midway between Rawls’ theory of justice and Habermas’ theory of communicative action. Nino’s theory of deliberative democracy is therefore in a sense a cozy middle ground which combines qualified Rawlsianism with qualified Habermasianism. However, it is difficult to take without reservations his overstretched "attempt to avoid the extremes of Rawls’ world of individual reflection and Habermas’ populism".

Nino attempts to derive from his theory of deliberative democracy several prescriptions for institutional design. In this he is justified in supporting decentralization, the regulation of campaign financing, a mixed system of private and regulatory control mass media and semi-presidentialism, but is unable to decide whether it would be desirable to entrench the constitution. In his view, "[s]ince there are no conclusive theories presently about the weight of past decisions and the justification for entrenching them, the best one can do is to proceed with caution". Finally, Nino develops an interesting discussion of what he calls the "mystery" of the justification of judicial review. In his argument, under the epistemic theory of democracy, review is necessary, "but it may not be judicial review" and may well be political review. However, the epistemic perspective also leads to three exceptions to this denial of judicial review. The first is where there is the need of strengthening the democratic process. The second is where moral individual autonomy is endangered by the imposition of a particular ideal of human excellence. The third exception is in situations in which there is a serious undermining of the convention that makes up the historical constitution.

Nino’s arguments lie entirely in the province of the intellectual debates of American academia. They are vigorously crafted with the subtle ingenuity of the learned scholar and experienced jurist. His
discussions are most of the time enlightening and have the merit of rendering readily available and directly meaningful to lawyers many relevant aspects of the current debate in political theory and moral philosophy. Moreover his insider’s account of human rights policy-making in Argentina is instructive and in many ways appealing. Students of constitutional law and human rights will find worthy reading in his books. However, his more theoretical work, as with all endeavors to give broad theoretical significance to political practice, while perhaps offering meaningful resources to judges, politicians and citizens, remains beset by the frailties inherent in bold conceptual construction, which seem always to reflect the limits of the human intellect.