Closing the Books: Transitional Justice in Historical Perspective
By Jon Elster
Summary written by Eric Brahm, Conflict Research Consortium
Citation: Elster, Jon. Closing the Books: Transitional Justice in Historical Perspective. New York, NY: Cambridge University Press, 2004.
In this book, Elster provides a significant contribution to our understanding of transitional justice by identifying patterns across time and space. The first part of the book provides some background on the universe of cases. Because they are less well-known and to illustrate they are not strictly a modern phenomenon, extended attention is paid to two transitional episodes in ancient Athens and post-Napoleonic restorations in France. There are short treatments of a range of more familiar, mostly 20th century, examples. From these cases, Elster suggests a classification system. The nature and duration of the outgoing regime and of the process of transitional justice are identified as important sources of variation.
This initial overview of cases serves to set up part two of the book, which aims to understand the sources of variation in transitional justice. Transitional justice can range along a continuum from pure legal justice to pure political justice with various administrative measures falling somewhere in between. In fact, any society, according to Elster, answers a series of questions in determining its transitional justice policy. First, it must determine whether to do anything about the past. Provided the answer to this question is yes, a series of additional substantive questions arise:
- Determining who is a wrongdoer.
- What is to be done to them?
- What kind of sanction should they face?
- If provide compensation for victims, who qualifies?
- What form will reparations take?
A number of procedural questions arise as well on how to implement transitional justice.
Chapters look more closely at wrongdoers and victims in the course of transitional justice. Elster explores the varying motivations of wrongdoers as well as the range of justifications given for their actions. With respect to victims, he examines how different forms of suffering have been dealt with in a range of cases. He delineates three types of suffering: material losses, personal physical harm, and more intangible suffering such as the loss of opportunities. There is also a discussion of the difficult task of determining who in fact is a victim.
The shape of transitional justice is also clearly influenced by a range of environmental constraints. Particularly under negotiated transitions, the outgoing leaders have been given assurances to that their persons and property will be secure. Legislatures and courts, however, provide sources of uncertainty as they may not live up to the negotiated deal, particularly if they were not party to the negotiations. In some instances, third parties may add credibility to guarantees. Economic constraints are also important in both shaping what is possible financially, as well as by providing other important issues that will rival transitional justice for attention.
Another important chapter deals with the role of emotions in transitional justice situations. Emotions can be particularly important because they can short-circuit normal motives for action. They can induce urgency and impatience, but also may be short-lived. Elster explores different types of retributive emotions and their consequences for the types of transitional justice mechanisms utilized. Emotion is also significant in terms of the guilt felt by wrongdoers, survivors, and bystanders, which also influences transitional circumstances.
Finally, Elster explores how the calculations of political parties help to shape transitional justice. Parties may engage in vote seeking (proposing policies which appeal to voters) or vote denying (seeking to disenfranchise those who will likely oppose their policies). Aside from more material self-interest, sometimes "groups and parties have embraced transitional justice as a means to implement or consolidate a larger ideological project." (260) Some have desired to restore the past, but others to transform society.
In sum, the book provides an important function in isolating a number of important aspects of transitional justice. It would have been helpful to have a conclusion that wrapped things up. As it is, each chapter in the second part of the book stands largely on its own. What is more, the book does an important service by surveying an extremely broad range of transitional justice cases. However, particularly in the second analytical part of the book, the cases come largely from Europe, either from post-WWII examples or post-1989. Despite Elster's intentions, this may lead some to question whether the patterns he identifies are universal.