LAW AND THE POLITICS OF RECONCILIATION

Vol. 17 No. 10 (October, 2007) pp.788-792

LAW AND THE POLITICS OF RECONCILIATION, by Scott Veitch (ed.). Aldershot, England and Burlington, VT: Ashgate, 2007. 256pp. Hardback: $99.95/£55.00. ISBN: 9780754649243.

Reviewed by Adriana Buliga-Stoian, Department of Political Science, Binghamton University – SUNY. Email: mbuliga1 [at] binghamton.edu.

LAW AND THE POLITICS OF RECONCILIATION, edited by Scott Veitch, is an attempt to capture the conceptual complexities of reconciliation. As Emilios Christodoulidis and Scott Vetch explain in the Introduction to the volume, the main tenet of the book is that reconciliation is not merely a political process. Recognizing that reconciliation is a multi-layered process, this collection of essays is a survey of the main themes that mark its understanding. Some of the contributors to the volume, such as Andrew Schaap, Fernando Atria, Zenon Bankowski, and Adam Czarnota, link reconciliation to theology and philosophy, where they maintain that the concept was first forged. Others emphasize the manner in which time and perceptions of time may cause or affect the practical aspects of the reconciliation process (Brenna Bhandar and Adam Czarnota). Further, essays signed by Setwart Motha, Lorna McGregor, Peer Zumbansen, and Claire Moon deal with the manner in which the law and legal institutions may aid or hamper the process of reconciliation. And, in line with the statement that reconciliation is a multi-faceted concept, some essays deal with reconciliation between various perceptions of time (Brenna Bhandar), especially in the context of globalisation (Adam Czarnota), and reconciliation in a feminist perspective (H. Louise du Toit). The book addresses a wide audience, ranging from theology and philosophy scholars to legal theorists, sociologists and social scientists, in general.

However, the volume does not offer the kind of political analysis of reconciliation that a mainstream political scientist would expect. The political sphere is assumed to play a role in the reconciliation process, but the volume does not delve into the mechanisms by which the political process shapes and produces the outcome of reconciliation. That being said, it becomes important to bring to your attention the essay signed by Andrew Schaap, Research Fellow in Politics, at the University of Melborne. In “The Time of Reconciliation and the Space of Politics,” Schaap offers a definition of political reconciliation that nicely sets its boundaries in relation to other forms of reconciliation, as well as its main focus. In the author’s opinion, reconciliation in a political context cannot be an issue of redefining the past, as individuals and groups have created their own narratives to make sense of it, nor can it discover a common normative ground in a past marked by divisions and enmity. Rather, political reconciliation should focus on creating a common future through the act of constitutional design. The concepts presented in the essay will sound familiar to institutionalists, although Schaap‘s analysis is framed more in philosophical [*789] terms and follows in the footsteps of Arendt’s (1958; 1977) theoretical work.

In Schaap’s interpretation, the constitution is of crucial importance for the society to move away from a divisive past towards a common future. A constitution cannot offer a common normative ground but it can lay the foundation for common actions and a new identity in the future. The process of reconciliation is based on a promise of “never again,” and the constitutional order established during the transition should provide strong guarantees to that effect. Constitutions define a ‘we’ that might have not existed in the past but is brought together in the name of opportunities created by the new constitutional order. Schaap’s view of constitutions as a beginning and guarantee against the horrors of the past is very well understood in the light of formal theory. Namely, that constitutions and rules in general create expectations about behavior of political actors and helps them coordinate a common path of action, while each attempt to realize their goals (Elster 1995; Knight 1992; Lijphart 1992; North 1990). Constitutions can act as stabilizing forces for the future and can bring different groups to act together under a single banner if they provide a distribution of benefits and opportunities that all parties perceive as the best possible, given the circumstances. The ability to commit credibly to the set of rules specified in the constitution is highly dependent on the opportunities that the constitution offers to each party and the underling balance of power (North and Weingast 1989; Przeworski 1991). Of course, constitutional theorists and institutionalists would point out that the realization of such an ideal is not an easy task from a practical perspective because the constitution itself is the result of the underlying balance of power and distribution of resources in the polity, which in most cases is shaped by the very past the constitution is attempting to overcome (Elster 1995; Shapiro and Stone 1994; Shvetsova 2003).

A major theme of the volume is tracing the meaning of reconciliation back to its origins in Christian theology and philosophy. Schaap argues that the original concept of reconciliation does not directly translate into the realm of politics. Reconciliation as envisioned by religion and Christian theology takes place between a unified and abstract humanity, in which individuals lose their individuality in order to become one with God, while reconciliation in the political meaning of the word has to acknowledge the diversity of human identities and the conflicts that stem from it. Fernando Atria argues that the Christian origins of reconciliation are mirrored in its political incarnation by the demand for punishment and forgiveness. However, the translation of the meaning of reconciliation from one realm to the other has altered its tenets and, unaware of the metamorphosis of the term, we might miss its actualization. In the Atria’s opinion, reconciliation is defined by a revolutionary moment in time when something essential is revealed about the parties – their humanity. The politics of reconciliation would guarantee that individuals can live fundamentally human lives. From reading the two essays, another line of [*790] inquiry suggests itself. One cannot help but wonder how the meaning of reconciliation, originated by Christian theology, is reflected by the politics of societies dominated by different religious traditions. What is the meaning of reconciliation for polities such as Rwanda, Somalia, Pakistan, India or Palestine, to give but a few examples. Is it the case that we are placing our understanding of reconciliation on a process that is understood differently by the parties to it in such societies, or maybe the concept has crossed cultural boundaries to the point where reconciliation, in the political sense, has acquired a meaning that is generalizable across cultural boundaries?

A number of essays deal with the manner in which the law and legal institutions affect the politics of reconciliation. The law can become an obstacle to reconciliation if used merely as a political tool. Lorna McGregor presents the relation between the law and the reconciliation process as a power struggle “between the metaphysical structures of reconciliation and the law” (p.114). The relationship is structured in this manner because the law, when used as a tool in the hands of the state, “attaches concrete reductive meaning to clearly identifiable spaces, whereas reconciliation inhabits a temporally detached universe appearing both everywhere and nowhere” (p.114). Another source of conflict between the law and reconciliation, defined broadly, is the law’s ability to retain the influences from the past that the reconciliation process is trying to overcome and heal. The essay by Lorna McGregor can be seen as a theoretical framing for the two essays discussed below.

Setwart Mortha analyzes the role of the law in post-colonial Australia and the ambiguity it grants to the process of reconciliation. On the one hand, the law emphasizes the importance of property rights and redistribution as a means of redress for injustices of the colonial era, but at the same time law is called upon to support and legitimize the sovereignty of a state within borders that have been drawn by colonialism. It is this contradiction in the goals set forth for the legal system that cause the reconciliation process to lag behind expectations and to address a community of natives that, Motha asserts, cannot continue to exist and perhaps never really existed. Brenna Bhandar finds evidence of the same type of contradictions in rulings of the Canadian Constitutional Court but looks for a cause that could explain the political choices that have come to structure the reconciliation process in legal terms. In Bhandar’s opinion, our perception of time underline political choices and explain the manner in which the law is called upon to structure the reconciliation process. A linear, teleologic perception of time may also account for our need for reconciliation, while a perception of time as a flux of narratives might make the reconciliation process unnecessary or an easier burden.

Taking a different approach, Claire Moon assesses the positive role that legal institutions can play in the reconciliation process. In combination with other means of bringing peace and healing to a society marked by violence, [*791] the courts can become a good environment for the administration and implementation of reconciliation as retribution for previous harms. In South Africa, the reconciliation process entailed a combination of therapeutic methods, such as confessions and testimonials, and appeals to courts for material compensations. The process in South Africa is a testimonial of the two aspects of reconciliation: emotional healing and compensation for injuries. The courts are suited to handle the latter aspects, but they cannot be expected to carry out the entire process on their own.

All the essays reviewed above call on the need to separate the legal from the political in order for normative ideals of reconciliation to take shape. However, a growing number of studies in judicial politics emphasize the political origins of laws and legal institutions (McCubbins, Noll, and Weingast 1995; Shapiro 1981; Stone Sweet 2000; Stone Sweet 2002). Some studies indicate that independent judges call upon their political preferences when applying or interpreting the law to a given case (Segal and Spaeth 2002). There is, no doubt, some tension between the normative ideals outlined in these essays and empirical evidence presented by the above mentioned studies. Perhaps future research will reconcile the two lines of thought by either showing the manner in which the law can be separated from politics or by proving that such a separation cannot be achieved based on fundamental principles of the human condition.

In conclusion, the book addresses questions of interest to a wide audience. The volume’s lack of in-depth analysis is compensated by the diversity of ideas presented and the wide representation of academic disciplines. It asks a number of intellectually interesting questions and, in addressing them, raises intriguing questions for further research.

REFERENCES:

Elster, Jon. 1995. “Forces and Mechanism in the Constitutional-Making Process.” 45 DUKE LAW JOURNAL 364-396.

Knight, Jack. 1992. INSTITUTIONS AND SOCIAL CONFLICT. Cambridge: Cambridge University Press.

Lijphart, Arendt. 1992. “Democratization and Constitutional Choices in Czecho-Slovakia, Hungary and Poland.” 4 JOURNAL OF THEORETICAL POLITICS 207-223.

McCubbins, Matthew, Roger G. Noll, and Barry Weingast. 1995. “Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law.” 68 SOUTHERN CALIFORNIA LAW REVIEW 1631-1683.

North, Douglas C. 1990. INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE. Cambridge: Cambridge University Press. [*792]

North, Douglass C., and Barry R. Weingast. 1989. “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England.” 49 THE JOURNAL OF ECONOMIC HISTORY 803-832.

Przeworski, Adam. 1991. DEMOCRACY AND THE MARKET: POLITICAL AND ECONOMIC REFORM IN EASTERN EUROPE AND LATIN AMERICA. Cambridge: Cambridge University Press.

Segal, Jeffrey A., and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. New York: Cambridge University Press.

Shapiro, Martin. 1981. COURTS. A COMPARATIVE AND POLITICAL ANALYSIS. Chicago and London: The University of Chicago Press.

Shapiro, Martin, and Alec Stone. 1994. “Introduction: The New Constitutional Politics of Europe.” 26 COMPARATIVE POLITICAL STUDIES 397-420.

Shvetsova, Olga. 2003. “Endogenous Selection of Institutions and Their Exogenous Effects.” 14 CONSTITUTIONAL POLITICAL ECONOMY 191-212.

Stone Sweet, Alec. 2000. GOVERNING WITH JUDGES. CONSTITUTIONAL POLITICS IN EUROPE. Oxford: Oxford University Press.

Stone Sweet, Alec. 2002. “Constitutional Courts and Parliamentary Democracies.” 25 WEST EUROPEAN POLITICS 77-100.

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