Published in European Journal of Sociology 39 (1998), 7-48. COMING TO TERMS WITH THE PAST-nework for the study of justice in the transition to democracy -4 V. >, v. i. - by Jon Elster Columbia University Abstract ter the transition from an authoritarian to a democratic regime, 2 commonly observes trials of the agents of the former regime i efforts to compensate its victims. In our century, waves of nsitional justice have occurred in German-occupied countries er 1945, in South-Eastem Europe in the 1970s, in Latin-nerican countries in the 1980s, and in post-Communist countries er 1989. The article proposes a framework for the behavioral idy of these phenomena. The dependent variables are political cisions to pursue retroactive justice after the transition, dependent variables include the constraints of the actors, their novations and beliefs, as well as the mechanisms by which dividual policy preferences are aggregated into binding collective cisions. I.Andenass, G.A. Cohen, H.F. Dahl, D. Gambetta, J.Lautman and A. Stepan ents on an earlier draft of this article, and the National Endowment of the ;s for financial support. I. Introduction Over the last fitly years there have been a number of om authoritarian or totalitarian to democratic regimes. (For :nience, I shall use "authoritarian" for both pre-democratic ;.) In most of them, the new regimes have had to come to heir pre-democratic past. They have had to decide whether ollaborators with or agents of the former regime should be >urt or otherwise penalized, and whether and how the victims :s should be rehabilitated and compensated. Large-scale trials itions have taken place or are still unfolding in the German-lntries after WW II, in several South European countries in the East Bloc countries after 1989, and in a number of Latin untries in the 1980s. As these examples indicate, transitional occurs in regional waves, allowing earlier experiences within 3 influence later ones. Isolated cases also occur, as in South 1993 or South Korea in 1996. In a basic source book Neil Kritz coined the term transitional ese events.1 (The term "retroactive justice" is also commonly ontributions to these three volumes are largely normative, and awyers who rely on international law and the human rights e main purpose of the present article is to sketch a framework oral analysis of transitional justice. The dependent variables ns taken by the political forces in presence after the transition t to prosecution, amnesty, restitution, rehabilitation, truth- so on. The independent variables include the beliefs and e actors, as well as the constraints under which their policy made. Although the approach is mainly behavioral, this does at no attention is paid to normative factors. As in my work on s" - the allocation of scarce goods and necessary burdens - I normative conceptions held by the actors among the variables of the analysis.2 Also, I shall occasionally discuss (ed.), Transitional Justice. vols.I-III, Washington D.C.: United States ace Press 1995. New York: The Russell Sage Foundation 1992 and Local Justice in ' York: The Russell Sage Foundation 1995. J. Cohen, "The arc of the and criticize the validity of these normative arguments - either the arguments themselves or their factual premises.3 The discussion is largely programmatic. I offer more questions than answers, hypotheses to be tested rather than actual verifications. Given the paucity of literature on the subject I have not been able to go beyond this stage, although I hope to do so in the future. The only systematic discussion of explanatory factors in transitional or "retroactive" justice is Carlos Nino's invaluable study, Radical Evil on Trial." Although many of his conclusions carry over to the present analysis, they do not exhaust the topic. His dependent variables do not include economic measures of restitution and compensation. Among the independent variables he focuses heavily on the determinants of the strength of demand for retribution, whereas the discussion of other factors is less systematic. To produce a fuller set of dependent as well as independent variables, one has to look at case studies, especially the ones that are written in an analytical perspective. A model study from which I have benefited much is a book by Luc Huyse and Steven Dhondt on the Belgian case, La repression des collaborations 1942-52. To introduce the question, Section II offers a case study of the earliest well-documented case of transitional justice, the return of the democrats to Athens in 403 B.C. after the rule of the Thirty Tyrants. Besides being of interest in its own right, the episode shows that many of the issues and solutions we confront today have been with democracy from its beginning. Section III offers a general overview of the problem. Sections IV is a survey of the key dependent variables and the institutional solutions that have been chosen. In Section V I survey some of the main independent variables that should be considered. Section VI is a brief conclusion. moral universe", Philosophy and Public Affairs 26 (1997), 91-134 argues more ambitiously that moral facts themselves, such as the injustice of slavery, can have explanatory force. I shall only rely on the uncontroversial idea that people's subjective conceptions of justice - like other mental states - can have causal efficacy. 3 To pursue the analogy with local justice: when discussing the principle of seniority in layoffs from firms I have argued both that it owes much of its appeal to a conception of justice as desert (the more senior workers deserve to be retained because they have devoted the life to the firm) and that this conception is invalid (since this "devotion" does not normally entail any sacrifices, it cannot generate an entitlement). 4 In addition to his analytical gifts, Nino could rely on his experience as a participant-observer of the Argentinean transition. II. A case study. Although the bulk of examples in this article are taken from questions of transitional justice are not novel. In France the acutely posed in 1814 and then again in 1815, during the first Restorations.5 These were not, however, transitions to but passages from an authoritarian regime to an oligarchic ambiguous case of transitional justice in the sense of the le occurred in the first historical democracy, with the return of :s to Athens after the fall of the regime of the Thirty Tyrants in e following account of this case does not aim at any kind of npleteness, but is intended to highlight aspects of the process more or less similar form in recent cases.6 In its heyday from the early fifth century to the late fourth Athenian democracy was interrupted only by two or "oligarchic" episodes, in 411-10 and in 404-3.7 In the Thirty Tyrants" - who have been compared to a Latin ita8 - took power in Athens and installed a rule of terror in al thousand Athenians were killed and many fled. Their to their being deposed, and replaced by the larger oligarchic Three Thousand. Under Spartan supervision, the Athenian d the democrats in exile at Piraeus drew up a treaty of l that would allow the democrats to return and democracy to thier de Savigny, La Restauration, Paris: Flammarion 1955, Chs. V and he first Restoration left most of the administration in place, the second a "white terror" that involved large-scale purges. The second pected the decision taken under the first to restitute all properties that vcated from the nobility and remained in the hands of the state, but not been sold to particulars. As we shall see below, this was also the in Athens in 403 B.C. on T. C. Loening, The Reconciliation Agreement of 403/402 B.C. in rt: Franz Steiner Verlag 1987 (=Hermes Einzelschriften, Heft 53). The Aristotle, The Constitution of Athens. re were elements of transitional justice in the aftermath of the first (M. Popular Sovereignty to the Sovereignty of Law. Berkeley and Los rsity of California Press 1986, pp. 400-404), they were more prominent be restored, while the oligarchs who wanted to leave were granted a safe haven in Eleusis. According to Aristotle, the terms of the reconciliation were as follows: Those of the Athenians who had remained in the city and wished to leave should live in Eleusis, where they should retain full citizen rights, have complete self-government and enjoy their incomes. The temple was to be common to both sides. [...] Those living at Eleusis were not allowed to visit the city of Athens, nor were those living in Athens allowed to visit Eleusis, with the exception for both sides at the celebration of the Mysteries. The people at Eleusis were to contribute to a defence fund from their revenues like the other Athenians. If any of those leaving the city took over a house at Eleusis, they were to do it with the agreement of the owner; if agreement proved impossible, each was to select three assessors, and the owner was to accept the price they fixed. Any inhabitants of Eleusis acceptable to the new settles were to live with them there. Those wishing to move out to Eleusis had to register within ten days of the swearing of the reconciliation oaths if they were in the city at the time, and move out within twenty; those abroad had the same periods from the moments when they returned to Athens. Nobody living at Eleusis could hold any office in the city of Athens until he had been registered as having moved his residence back to the city. Homicide trials in cases where someone had killed or wounded a person with his own hands were to be conducted in accordance with traditional practice. There was to be a total amnesty covering everyone except the Thirty, the Ten, the Eleven and the governors of the Peiraeus; even they were to be immune from prosecution once they had rendered their accounts. The rendering of accounts for the governors of the Peiraeus was to be held before the citizens of the Peiraeus, while those who had held office in the city were to appear before citizens with taxable property. On tins basis those who wished to leave could leave the city. Each side was to repay separately the money which it had borrowed for the war. (The Constitution of Athens. 39.) Although Aristotle does not mention the fate of property confiscated by the oligarchs, other texts show that this issue was also covered by the treaty. In Thomas Loening's summary, iment by J.M. Moore, Aristotle and Xenophon on Democracy and eley and Los Angeles: University of California Press 1975, p.267. luals who had purchased confiscated goods will retain ;sion of them, and any property which had not been auctioned ill revert to the original owner. [...] This provision only es movable property. Presumably, the original owner would to establish undisputed title to these unsold goods before ing possession of them. Acceptance of the reconciliation nent meant a renunciation of all legal claims to movables cated and sold by the oligarchy. There may have been a ion whereby the exiles could repurchase their goods for the it of money paid by the buyer, provided that he were willing 1. Such a clause would prevent profiteering on the part of is who had bought confiscated property cheaply and who then ittempted to sell it back to the original owner at an inflated There would be no obligation to resell, unless the buyer d to do so. [...] Not all confiscated property remained in the of the purchasers. The reconciliation treaty ordains that vable property, such as land and houses, will be returned to brmer owners [...] on the condition that they paid.' Given this brief sketch of the reconciliation agreement, let me e salient features of the treaty and its application. First, the safety-valve negotiated for the oligarchs by m to emigrate to Eleusis seems to be a unique feature in cases ial justice. There are many cases in which the leaders of the itic regime have fled to escape justice, but to my knowledge ch they were allowed to do so as part of a formal transitional ial agreements have probably been made on some occasions, legotiated transitions to democracy. To smoothen the path of le democratic forces can allow a dictator to leave the country . take some state funds with him. Second, the treaty was established at the initiative of a /er. Although Sparta had initially supported the oligarchs, it artan king Pausanias who, using persuasion as well as force, /o parties reach a mutually acceptable agreement. Again, there rfect analogues in later instances of transitional justice. forces in countries under Communist rule and in Latin mlitary dictatorships have enjoyed and benefited from the ie Reconciliation Agreement, p.51-52. The last clause ("on the condition I") is somewhat conjectural. support of democratic regimes elsewhere. Sparta was not a democracy, however. Pausanias acted for reasons of internal and external politics at home, not because of any sympathy with the democrats.10 Third, besides opening the possibility of emigrating the reconciliation treaty contains several others safeguards for the oligarchs, (i) Except for the top officials, there was a general amnesty for acts committed during the oligarchy, and probably for crimes against the state committed before the oligarchy as well." (ii) Although murder was not covered by the amnesty, prosecution for murder was possible only in cases when the accused had killed "with his own hands" (autocheiria"). "The means which the Thirty had employed to eliminate their opposition, however, made it difficult for potential plaintiffs to demonstrate autocheiria in its strictest sense. Few victims of the oligarchy were murdered outright; more often they were deposed by an informer on a spurious charge, arrested, convicted before the oligarchic Council (unless a trial were dispensed with altogether) and compelled to drink hemlock."12 (iii) Even those exempt from the amnesty could get scot free by submitting their accounts (euthynai), as all Athenian officials had to do at the end of their tenure. If they passed their accounts, or were convicted and paid the appropriate fine, "they could utilize the amnesty to protect themselves from further legal entanglements arising from their tenure in office."13 Fourth, an amnesty did not imply that the past had to be completely erased from the public consciousness.14 Athenian officials were subject not only to the ex post scrutiny of euthynai. but also to the ex ante scrutiny of dokimasia. Although the latter was usually a matter of form, to ensure that the candidate satisfied formal requirements of birth and 10 The example suggests that to the varieties of democratization listed by A. Stepan, ("Paths towards redemocratization", in O'Donnell, Schmitter and Whitehead (eds.), Transitions from Authoritarian Rule: Comparative Perspectives, pp.64-84) we should add "Redemocratization initiated by an external non-democratic regime". 11 Loening, The Reconciliation Agreement, pp. 130-46. u IMA, p.83. 13 Ibid., p. 47. 14 Ibid., p. 102. In light of the examples from Lysias cited in the text, his argument seems more plausible than that of N. Loraux, La cite divisee: L'oubli dans la memoire d'Athenes. Paris: Payot 1997, for whom the core of the reconciliation treaty was a ban on referring to past strives in any way whatsoever. r * * ■ v i * mm tliere are several speeches by Lysias (16, 25, 26, 31) in which : of a candidate during the oligarchy is used as evidence of ;k of fitness for the position. The speech against Philon (#31) ' interesting, in that the candidate is argued to be unfit for • ground that he had been neutral during the civil strife. Fifth, the decrees in the treaty were applied with considerable otle praises Archinos, a leader of the democrats, for his e behavior "when he seized one of the returned exiles who ing to disregard the amnesty, brought him before the Boule, ed them to execute him without trial" (The Constitution of 2). An editor of Aristotle's text comments that Archinos' lacking someone for violating the amnesty was indeed right, way of reestablishing the state after such a traumatic period Vthenians to turn their backs on the past, but it is legitimate to an illegal execution was the best way of reestablishing the 15 The Athenians also instituted the law of paragraphe. which fendant to prevent the admission of a suit on the grounds that i treaty. Sixth, the protection of the oligarchs provided by the equirement could nevertheless be challenged by interpreting nore widely. In his speech against Eratosthenes (one of the sing him of the murder of his brother Polemarchos, Lysias to apprehend a man who is known to be accused unjustly and rtainty will be condemned to death, when it is possible for an avert such a miscarriage of justice, is tantamount to direct lthough the wording of the treaty was intended to exclude ind of charge, the fact that Lysias' case was tenable enough inary hearing to be deemed admissible (the outcome of the lot known) shows that the Athenians were at least willing to ose severe bodily harm or loss of life.40 Conversely, the Danish ng economic collaboration renounced on mens rea for criminal ity, by stipulating the guilt of those "who knew or should have at their activities would further German interests.41 Hence the nslators accepted neither failure to bring about the intended ces nor ignorance with regard to the likely consequences as I circumstances. In the Belgian case, another distinction was lereas the prewar legislation required proof that the accused had h the intention of harming" Belgian interests, the Belgian exile it substituted the weaker requirement that the accused had to be lave "acted with the knowledge" that his actions might harm the benefit the enemy.42 It must also be decided whether acts committed by agents of can be considered acts of wrongdoing even when they were by order of the legal authorities or were legal at the time. Well-i controversial cases include membership in the Nazi Party German occupation, an issue that was resolved differently in L'epuration, pp.51, 335. I Dhondt, La repression des collaborations, p. 220. ;tsopg0ret efter Besaettelsen p.368. 7. ■ 1, italics added. 1 Dhondt, La repression des collaborations, p.64. Norway and Denmark43; East German border guards who shot escapees to the West44 and informers to the security police throughout the East Bloc; and the "due obedience law" enacted in Argentina in 1987.45 In occupied countries, the treatment of economic collaboration with the enemy will also have to be considered. In Denmark, the prosecution of economic collaborators has been characterized as a "fiasco", partly because many of the cases came up so late than courts were reluctant to convict46; in France and Belgium, it was largely but not completely decrimininalized47; in Norway, it was relatively important.48 Decisions may also have to be made as to the cut-off date for wrongdoings. In some cases, this will be a function of when the appropriate laws or decrees were enacted. In Norway and Belgium, some acts of collaboration were punishable only according to legislation passed by the exile governments at various times during the war. As the war trials respected the ban on retroactive legislation, the same acts committed before those dates could not be prosecuted. In Denmark, there was an intensive debate whether to extend retroactive legislation to the cessation of hostilities in 1940, or only to acts after August 1943 when the Germans formally took control of the country. Broadly speaking, the former solution was chosen.49 In the recent East European transitions, demands have been made to extend the scope of restitution and compensation to 1945 (to include property confiscated from the 3 million Sudetengermans in 43 In Denmark, party membership was not deemed ground for prosecution (Tamm, Retsopggret efter Beseettelsen. p.386). In Norway, the Supreme Court decided on various grounds that it was (Om Landssvikoppgjeret, Oslo. Justis- og Politidepartementet 1962, pp.95-99) The difference can be explained by the much more important role of the Norwegian party in enforcing German rule. 44 K. Adams, "What is just? The rule of law and natural law in the trial of former East German border guards", Stanford Law Review 29 (1993), 271-314. 45 Nino, Radical Evil on Trial, p.100-101. 46 Tamm, Retsopgeret efter Besaettelsen. p.492-93. 47 L'epuration. pp.365-78; Huyse and Dhondt, La repression des collaborations, pp.237-48. In France, prosecution for economic collaboration was to some extent preempted by the extensive nationalizations that took place after the war. 48 Om Landssvikoppgjgret. p.239. 49 Tamm, Retsopgeret efter Besaettelsen. p.93. /akia or from the 240, 000 ethnic Germans in Hungary) or to elude property confiscated from Jews).50 Deciding how to deal with the wrongdoers. Once the s have been identified, it must be decided how to treat them, leaking, the responses lie on a continuum where one extreme is osecution followed by execution, prison or fines for those found the other is investigation followed by publication of the names ongdoers without any further legal consequences (although ith consequences in the form of private ostracism).The former s chosen in the German-occupied countries after WW II and lively in the Communist Bloc and Latin America. The latter ainly a conceptual possibility. Most of the truth commissions been at work since 1974 focus on victims rather than s. Only in El Salvador did the commission name some forty responsible for human rights abuses.51 The South African a is a special case (see below). Between the two extremes there is a large variety of mcluding pardons, amnesties, dismissal or suspension from ;e, loss of civil or political rights, confiscation of profits or of ard labor (in Belgium, one day working the coal mines counted ys in prison") redemption55, and liability for civil damages.54 oslovak lustration law lays down that people who held specific r engaged in specific activities under the Communist regime are irvey, see S. Avineri's contribution to the "Roundtable on property East European Constitutional Review Vol.2 No.3 (1993), pp.30-40. -vey, see P. B. Hayner, "Fifteen truth commissions 1974 to 1994 - a survey", in Kritz (ed.), Transitional Justice, vol.1, pp.225-61. I Dhondt, La repression des collaborations, p. 143. • the liberation of France, young men who had enrolled in the militia and :s could redeem themselves by enlisting in the French expeditionary force (De Gaulle, Memoires de Guerre. Paris: Plon 1989, p.704). 5 only a theoretical possibility. Following the fall of Communism in 1989 lars argued that victims from the Communist era should be allowed to sue itors for civil damages, as an alternative to criminal prosecution, but the tie to nothing. ineligible for specific public offices.55 The South African Truth Cornrnission relies on self-reporting. An individual can choose between applying for amnesty, with a risk of being prosecuted if the actions to which he admits do not fall under the amnesty law, or remaining silent, with a risk of being prosecuted if independent evidence to convict him comes to light. Identifying the victims. Victims of these wrongdoings include several different groups. First, there are those who suffered personally and directly at the hands of one or a few individual wrongdoers. These include victims of torture, escapees or demonstrators who were shot, individuals who were made to "disappear", citizens who lost their jobs or went to jail because someone informed on them, and victims of unjustified killings by resistance groups. In these cases, one wrongdoer imposed great harm on one victimized individual. In the polar opposite case, each of many wrongdoers imposed a small harm on each of many individual victims. Thus any individual's membership in the Nazi or Communist party or (in most cases) economic collaboration with the enemy could only have a small impact on the welfare of any given other person. Yet if for any given wrongdoer we add up the damage done to all the victims or for any given victim the damage done by all the wrongdoers, the amounts could be considerable.56 Third, individuals can be victims of political decisions that do not target them personally. Under Communism, this category includes those who had their property confiscated or nationalized as well as those who were prevented from selling their labor power or hiring others for a wage. Indirectly, many also suffered from the preferential treatment given to members of the Communist Party and their children. Some individuals were also penalized because of their class background, to the point where the phrase "class genocide" has been used.57 The treatment of Jev/s in German-occupied countries and of blacks in South Africa also falls in this category. In many of these cases, individuals are victimized not because of anything they have done, but because of what they are or what they have. 55 A survey of lustration laws in post-Communist societies is H. Schwartz, "Lustration in Eastern Europe", in Kritz. (ed.), Transitional Justice, vol.1, pp.461-83. 56 See also D. Parfit, Reasons and Persons, Oxford University Press 1984, pp.67-86. 57 S. Courtois et al., Le livre noir du communisme. Paris: Laffont 1997, p. 19. i m ) Finally, family members and relatives of victims in any of ries may themselves be viewed as victims, on one of two the one hand, spouses, siblings, parents or children of persons ■.ported, made to disappear or otherwise treated cruelly may lave suffered cruelly. On the other hand, descendants of vho had their property taken away from them may have iuse of the reduced opportunities that were left open to them, have" because the confiscated goods might also have been nd left no opportunities for descendants to exploit.) Deciding how to deal with the victims. There is a large range to the wrongs done to victims, ranging from undoing of the nly symbolic measures. Consider first responses to economic 58 Undoing may occur in the form of physical restitution of nd or housing, either in all cases (as in Norway after WW II) the property has not been resold to particulars (as in Greece ). It can also take the form of material or financial , e.g. the allocation of a comparable piece of property or its lue in money, vouchers or shares. Victims can also be for other economic losses, as when a person is compensated arnings of a dead spouse or when years lost because of re taken into account when calculating the seniority of Finally, victims may be given preferential treatment in the carce goods, thus creating a link between transitional justice ice. Thus in Russia, political victims take priority in the ousing, medical treatment, and phone installations.59 Tie undoing may be incomplete, e.g. if (as in Bulgaria after 3 an upper limit on the size of landholdings that can be le original owners or (as in much of Eastern Europe) for loss of property is awarded in the form of vouchers that buy shares in newly privatized companies. In Norway after lensation for property that had been confiscated and sold was limited to 68% of the value, the discrepancy being due linistering the funds during the war (28%) and after the war of economic compensation in Eastern Europe, see C. Offe, Varieties mbridge: Polity Press 1997, Ch.6. ) (4 %).60 Strictly speaking, of course, undoings will almost always be incomplete (or ^determinate), since one can rarely know exactly how an individual would have fared in the present had certain rights abuses not taken place in the past.61 Responses to physical wrongdoings (death, imprisonment, torture) also include financial compensation for "moral damages". More frequent responses, perhaps, are measures of rehabilitation and truth-finding. Thus the main aim of most truth commissions has been to alleviate the pain of victims and their relatives rather than to expose wrongdoers. As mentioned, reports from these commissions usually do not cite any names of wrongdoers, but only list the victims. More generally, any measures undertaken to punish wrongdoers will ipso facto be capable of serving the needs of the victims.62 Procedural issues. Times of transition are, almost by definition, exceptional. The procedures used in dealing with the past also tend to be exceptional. Second-best arguments come to the forefront, together with considerations of practicality and expediency. Compared to normal legal procedures, the following exceptional measures have been observed: Illegal internments. In France and especially in Belgium, many suspected collaborators were interned after the liberation without much respect for legal formalities. In Belgium, "some mayors were under strong pressure from members of the resistance and found themselves forced to give out internment orders with the name to be filled in".63 To some extent, though, this illegal behavior may have been a lesser evil, as the internment camps also protected the suspects from popular violence.64 60 Inndraening av Jedisk Eiendom i Noree under den 2. Verdenskxig. pp.41-45. 61 J. Waldron, "Superseding historic injustice", Ethics 103 (1992), 4-28, esp. pp.7-14 62 There is obviously a risk that these measures might be taken in order to serve those needs rather than to determine the just treatment of the wrongdoers, i.e., that the goals of vengeance or catharsis might come to replace that of retribution. See also V below 63 Huyse and Dhondt, La repression des collaborations, pp.102. impensating former political prisoners", p.753-54. 64 Lottman. L'epuration, pp.135, 182, 328. ctive guilt. In France, de Gaulle wanted to try the P6tain e collectively, for having signed the armistice. When his iter of Justice threatened to resign, de Gaulle gave way.65 In ay, all members of the Nationalist Socialist party were initially collectively and fully responsible for economic damages d by the organization. Under this rule, they would all have had slare bankruptcy. Later, the responsibility was adjusted to take int of the guilt and the economic situation of individual :>ers.66 In 1992, three human rights organization submitted a jrandum to the Constitutional Court of the Czech and Slovak blic, claiming that the lustration law amounted to "an sition of collective guilt".67 The Court upheld the law. imption of guilt rather than of innocence, and inverse burden of '. As mentioned, higher French officials lost their jobs unless could prove that they had been active in the resistance. In um, it was necessary to show a "certificate of civic behavior" large number of occasions, e.g. to be inscribed in a university . business registers. The system soon got out of hand, to the where a former Minister of Justice wrote that "The way things ;oing, we can foresee the day when one has to show a icate of civic behavior to obtain a certificate of civic behavior, ust as under the occupation one had to prove that one was not ;h, now there are all sorts of occasions on which one has to ; that one was not incivic."68 :d selection of jurors and judges. In France after WW II, there :onsiderable pressure to select members of the resistance to the ial bodies that were to judge the collaborators. In some cases, nay have led to jurors being charged with judging the very iduals who had been responsible for their suffering.69 In um, too, members of the resistance claimed a central place in ). Pet Vanskeliee Oppgi0ret. pp. 125-34. idum on the applicability of international agreements to the screening : (ed.), Transitional Justice. vol.III, pp.335-45, at p.342. Dhondt, La repression des collaborations, p.42. ,'epuration. p.225. judging the collaborators, but with less success.70 In Denmark, the resistance movement was allowed to nominate 5% of the lay judges as a gesture towards the Communists, who were not inscribed on the electoral lists from which these judges were selected.71 The Danish resistance had full veto powers over the professional judges.72 Lack of adversarial proceedings. Among the objections raised to the Czechoslovak lustration law, was that "the Act does not require that the subject of a Commission hearing is entitled to the aid of counsel, to present his or her own evidence, or to refute the evidence against him".73 In France after WW II, the Comite National des Ecrivains published a "black list" of 158 collaboratist writers, without prior contradictory proceedings. Lack of appeal mechanisms. In some cases, normal appeal mechanisms are suspended or not created. Thus in Belgium, the denial of a certificate of civic behavior could initially not be appealed, a practice that persisted until two years after the liberation.74 In Denmark, the law regulating war trials stated that only sentences to death or to more than ten years of prison could be appealed, except when a special commission found that the circumstances justified an appeal.75 Special courts. In some countries, the political authorities had the choice between trying cases before civilian courts and using (preexisting) military courts. This was the case, for instance, in Belgium76 and in Argentina.77 Both countries initially chose the military option, but in Argentina jurisdiction was transferred to 70 Huyse and Dhondt, La repression des collaborations, pp.72, 90-93. 71 Tamm. Retsopggret efter Besaettelsen. p.135-35. 72 Ibid., p. 133. 73 "Memorandum on the applicability of international agreements to the screening law", p.344. 74 Huyse and Dhondt, La repression des collaborations, p.42. 75 Tamm, Retsopg0ret efter Besasttelsen. p.758-59. 76 Huyse and Dhondt, La repression des collaborations, p. 72-73. 77 Nino, Radical Evil on Trial, pp.67 ff I JH JH JH JH iflk JH w m ■ m ■ ■ courts because of the unwillingness of the Supreme Council Armed Forces to judge their own. In other countries, the n was whether to create special tribunals to deal with rators. In Denmark, the Council of the Resistance tsradet") wanted to try the accused before special courts, because of skepticism towards the regular judiciary and 0 expedite the trials.78 Under pressure from civil servants the t of Justice renounced on this idea after the liberation.79 In by contrast, martial courts and military tribunals were used in the first months after the liberation.80 rgaining. In Belgium, a decree of November 10 1945 opened possibility of plea bargaining - otherwise unknown in an legal systems - when the maximum penalty for the crime ion was less than five years.81 :tive legislation. In many countries, transitional justice has jonfront (or finesse) the principle of nulla poena sine lege. :ues come up: whether to punish people for actions that were minal when committed, and whether actions that were 1 when committed can be punished more severely (e.g. by th penalty) than laid down in the earlier law. In Norway, ivity for acts was excluded, but retroactivity for punishment facto admitted.82 In Denmark, both forms of retroactivity :plicitly admitted.83 In Belgium, retroactivity was technically , although the decision to interpret the phrase "bearing arms Belgium" to cover any action that benefited the enemy84 was o a form of retroactive legislation. Similarly, because pgeret efter Bessttelsen. p.83. In Norway the resistance movements d special courts, on the grounds that they were identified with the actices of the occupying power (Om Landssvikoopgi0ret. p.51-52). measures that without basis in previous legislation impose the loss of civil liberties or the right to hold office are not criminal statutes, they are not technically retroactive. With regard to the Czech lustration laws it has nevertheless been argued that "the justifications for the nulla poenae principle apply"85 to this case as well. If accepted, this argument also undermines a claim made in a secret report from 1943 about the future trials of collaborators in France: "For political acts of collaboration not covered by the criminal law, the report suggested national indignity - a 'political offense' being sanctioned by a 'political punishment', such as banishment or national degradation; in this way, the question of retroactivity would not even arise."88 Extending statutes of limitation. When an authoritarian regime fails to pursue crimes committed by its agents, it may seem perverse diat they shall later benefit from a statute of limitation. Thus in 1993 the Czech Republic passed an "Act on the illegality of the Coinmunist regime and resistance to it", which stipulated that "The period of time from 25 February 1948 until 29 December 1989 shall not be counted as part of the limitation period for criminal acts if, due to political reasons incompatible with the basic principles of tire legal order of a democratic State, [a person] was not finally and validly convicted or the charges [against him] were dismissed." The law was later upheld by the Constitutional Court.87 When the Hungarian parliament passed a similar law in 1991, it was struck down by the Constitutional Court.88 Shortening statutes of limitation. Conversely, the new regime may decide to put an end to prosecution before die normal statute of limitation has expired. Thus in Argentina, President Alfonsin decided in 1983 that "The trials should be limited to a finite period during which public enthusiasm for such a program remained ■uration. pp.43, 107 ff. ondt, La repression des collaborations, p. 134. Pet Vanskelige Oppgj0ret, p. 119 ff., who demonstrates the flaws in jffered by the Ministry of Justice for the non-retroactivity of the iRgret efter Besasttelsen. pp.71-72, 75, 121. ondt, La repression des collaborations, p.64-65. 85 "Memorandum on the applicability of international agreements to the screening law", p.343. 86 Lottman, L'epuration. p.52. On the similar procedure in Belgium, see Huyse and Dhondt, La repression des collaborations, p.28-29. 87 "Act on the illegality of the Communist regime and resistance to it", in Kritz (ed.), Transitional Justice. vol.IH, pp.366-68; "Constitutional court decision on the illegality of the Communist regime", ibid., pp.620-27. 88 J. Pataki, Dealing with Hungarian Communists' crimes", ibid., vol II, pp.647-52, "Constitutional court decision on the statute of limitations", ibid., vol.Ill, pp.629-40 "8« In 1986, under pressure from the nulitary, he had ament enact a "full-stop law" that established a sixty-day limit rosecution.90 lesties. pardons and early release. Although these measures are exceptional in themselves, their use on a large scale for serious es is. In Latin America, general amnesties have been quite mon. In Argentina, Brazil and Chile, the military enacted "self-jsty" laws before leaving power. These were respected in the r two countries, but not in Argentina. In Uruguay, the post-iitional parliament voted a general amnesty, which was ywly upheld in a referendum. After WW II, many countries that been occupied by Germany issued pardons and early releases to :t injustices created by the increasing leniency of the courts." Below I discuss why the new regimes might decide to adopt e of these non-standard procedures. Here, I shall only point to it tension that was already mentioned in connection with bove. On the one hand, practical considerations and emotional • suggest short-circuiting the normal procedures of justice. On and, the new democracies may need to assert the rule of law /ery beginning and to distinguish themselves unambiguously predecessors. In Havel's memorable phrase, "We are not like V. Independent variables To explain the variables discussed in the previous Section, dentify (i) the political actors, (ii) the constraints on their 'iii) their motivations, (iv) their beliefs, and (v) the mechanisms •.onflicting individual preferences are aggregated into a binding ical Evil on Trial, p.67. »2-94. md Dhondt, La repression des collaborations, pp.161-80; Tamm, efter Besasttelsen. pp.256-62; Andenass, Pet Vanskelige Oppgjgret. comments about the need to respect legality in the trials after World War iss, Pet Vanskelige OppgJBrel. p. 62; Lottman, L'epuration. pp.50, 109, ind Phondt, La repression des collaborations, p. 100. collective decision. Below, I consider these independent variables in that order. Some preliminary remarks may be useful. First, often what matters are not the actual constraints of the actors, but the constraints they believe they are facing. If their beliefs turn out to be wrong, they may have to modify their course. Second, I shall distinguish between cases in which the motivations of the actors directly determine policy preferences, and those in which they must be supplemented with causal beliefs about ends-means relationships. Third, our explanations will not be fully satisfying unless we go beyond these independent variables, and look for "the causes of the causes". In particular, we often want to know why the various actors have the motivations - and strength of motivation - they have. For reasons of space, I shall not discuss this issue here, but instead refer the reader to Nino's excellent analyses.95 The actors. It might seem axiomatic that justice in the transition to democracy is shaped by the new democratic authorities -elected assemblies and executives that either stem from the latter or are themselves chosen by popular election. In this perspective, the main actors would be the political parties and, in presidential regimes, elected executives. Yet as the cases show, the structure of decision-making can be more complicated. Although the simple model just sketched applies well to the East European transitions, it is not adequate for the West European transitions in 1944-45 nor for the Latin American ones in the 1980s. In some cases, decisions are taken or prepared before the transition by exile governments or resistance movements. During WW II, the Belgian, Norwegian and French governments in exile enacted a number of laws and decrees with the dual function of regulating the fate of collaborators after the war and - by the harshness of the sentences -deterring people from collaborating during the war. (In Denmark the laws were adopted after the liberation and hence could not have a deterrent effect.) Whereas the Norwegian and Belgian governments had impeccable democratic pedigrees, de Gaulle's legitimacy came from Churchill rather than from the French people.94 In most of these countries, the resistance movements took an active part in preparing the legislation. Whereas the Norwegian ordinances of 1941 and 1942 were the work of the exile 93 Nino, Radical Evil on Trial, pp. 118-26. 94 J. Lacouture, Pe Gaulle, vol.1, Paris. Seuil 1984, p.386 i m m m m m m iiiiifiiiimm■■■■■■■ those of 1944 and 1945 were largely imposed by the jvement, although modified on some procedural points." The an ordinance of December 17 1942 - which imposed much :ures than what the exile government originally had in mind -ed in part by communications from the resistance.96 In le law adopted by parliament on May 31 1945 was a between two proposals prepared before the liberation, one e Council of the Resistance and the other by a committee of ts. Sometimes, the resistance movements continued to course of transitional justice after the liberation, not only qua dges or jurors (see above), but also as pressure groups side the normal political parties.97 In the cases just discussed, the anti-authoritarian forces began oactive justice before the transition. In Latin America, one 'erse phenomenon: the authoritarian forces retain some power sition and use it to influence or even dictate the procedures of istice. Here, too, the former opposition groups remain as a 2 outside the party system. Writing about Argentina, Carlos ;rizes their role as follows: ition to the military and the political parties, human rights nations played a key role in the transition and might be seen third collective agent influencing the course of retroactive . They emerged from the military dictatorship with enormous, lined prestige for their courageous opposition to repression, ave them considerable influence, which they used through onnections with members of the various parties. But perhaps reatest source of their power was their international ancy, because the government's own prestige depended on in's positive international image as a human rights crusader ; somebody who would once and for all overcome the mal Argentine penchant toward authoritarianism.98 :t Vanskeliee Oppgieret. pp.53, 72. hondt, La repression des collaborations, p.68-69. 1 Evil on Trial, p.l 11-12. In the cases that I have discussed so far, the actors involved are collective groupings - political parties, the military, and pressure groups of various kinds. Individual citizens can also, however, act directly. In the Danish debates, the proposal was made - but not implemented - to decide by referendum whether to impose the death penalty for the worst crimes.99 In Uruguay, as mentioned, the final amnesty decision was made by referendum. There do not seem to be other examples.100 Constraints. Periods of transitions are usually characterized by scarcity of resources and other constraints on action. Some proposals, such as establishing forms of retroactive justice that are "efficace, rapide et equitable", are not feasible.101 Other proposals, while feasible, have unacceptable side effects. They absorb too much of valuable resources, and may even undenriine the very values they are intended to promote. When these constraints are understood from the beginning, the actors can make coherent choices. When they only reveal themselves after a while, they may necessitate drastic revisions. Hard constraints on transitional justice include the scarcity of time, attention, funds, personnel and information. Concerning time, the harshness of sentences tends to decrease after a while. Aristotle observed that "men become calm when they have spent their anger on someone else. This happened in the case of Ergophilus: though the people were more irritated against him than against Callisthenes, they acquitted him because they had condemned Callisthenes to death the day before" (Rhetoric 1380b 11-13). This effect is very frequently observed in transitional justice. After WW II, sentencing became more and more lenient as time passed.102 When the effect is anticipated, it can motivate a 99 Tamm, Retsopeeret efter Beseettelsen. p. 100. 100 None are listed in D. Butler and A. Raraney (eds.), Referendums around the World. Washington, D.C.: American Enterprise Institute 1994 101 This was the stated goal of the first OBelgian government in 1944 (Huyse and Dhondt, La repression des collaborations, p.l 13). In practice, the Catholic party opted for trials that were "rapid and equitable", while the other parties wanted them to "rapid and effective" (ibid., p. 124-25). 107 Huyse and Dhondt, La repression des collaborations, p.231, who consider and reject the hypothesis that the trend is an artifact of the most serious crimes having been tried first; Tamm, Retsopggret efter Besgettelsen. Ch.7; Andenees, Pet Vanskelige Oppgjgret. p.229. peedy trials. As noted earlier, Alfonsin wanted the trials to take "public enthusiasm remained high". In Belgium, one reason ing quickly was that on the basis of the experience from WW I, lieved that after a while, the popular willingness to impose ;nces on the collaborators would give place to indifference".103 Concerning attention, one has to remember that in times of itroactive justice is often only one task among many. Dealing ist has to compete with more forward-looking tasks, such as he economy or recreating constitutional democracy. Huyse and ;ue, for instance, that in Belgium the question of how to deal >llaborators was one of second- or third-order importance.104 snt does not imply that retroactive justice was neglected or that er forms than it would otherwise have done, only that decisions in a more haphazard and irregular way than if they had been at the political agenda. In Argentina after 1983, by contrast, justice was the highest-priority issue and not constrained by ntion. Considering funds and personnel, these are also resources nany alternative uses in transition and reconstruction. At the they tend to be even scarcer in supply than under normal ;es. In Norway, for instance, it was calculated that 14% of the eal capital was destroyed during WW II. Hard economic made it impossible to replace the capital and at the same time mpensation for loss of property. In post-1989 Czechoslovakia, guments against indemnifying emigres "were based on the view :e lacked the resources to satisfy property claims of as many as aimants from abroad, and that to try to do so would hopelessly the court system and paralyze the privatization process in Thus financial constraints as well as constraints created by the " the legal system serve to explain the decision to exclude processes of restitution, the cost of justice may absorb much of d Dhondt, La repression des collaborations, p. 115, who also cite three ; for desiring quick trials. Note that the reasoning goes against the usual tponing action until one's anger has spent itself I Dhondt, La repression des collaborations, p. 77. i, "Settling accounts: Postcommunist Czechoslovakia", in Kritz, (ed.), ustice. vol.11, pp.575-78, at p.577. i m m m m m m what is to be restituted. Thus in one Norwegian case concerning restitution of Jewish property after 1945, the cost of settling an estate worth 1.8 million Crowns (about 3 million dollars in today's money) was 1.5 million Crowns, which was deducted from the estate before restitution.106 In many authoritarian regimes, police officers, prosecutors and judges are part and parcel of the system of repression.107 After the transition, it may be difficult to find a sufficient number of competent officials that are not themselves under suspicion. In Argentina, "the new judges appointed by the Alfonsin administration were young and inexperienced; those originally appointed by the military regime and reappointed in 1983 were suspected of not having democratic convictions".108 Under Communism, lawyers were essentially party hacks, with no training in independent legal thinking. (In East Germany this fact was not a problem, as cases arising here were brought before West German judges.) In several German-occupied countries, the judiciary was widely seen as collaborationist and untrustworthy, whence proposals to use special courts or rely on summary executions. In Belgium, many experienced judges and lawyers were reluctant to make the sacrifice of their personal interest that the task would involve.109 Scarcity of competent personnel can also affect decisions to prosecute in a very different way. In many cases, most competent administrators and business leaders in the new democracy have been deeply involved with the authoritarian regime. To have them prosecuted and jailed or disqualified would deprive the country of badly needed expertise. It is difficult to have a complex modern society run by people who have spent much of their life underground, in prison or in exile. The relatively lenient treatment of public officials and economic collaborators in France and Belgium after WW II, and of Communist bureaucrats in Eastern Europe after 1989, may owe a great deal to sheer scarcity of 106 Inndragnine av Jedisk Eiendom i Norge under den 2. Verdenskrig. p. 110. 107 For a more nuanced statement, arguing that judges are better able to retain some autonomy under authoritarian regimes than in totalitarian systems, see M. Osiel, "Dialogue with dictators: Judicial resistance in Argentina and Brazil", Law and Social Inquiry 20 (1995), 481-560. 108 J. Malamud-Goti, Game Without End. Norman and London. University of Oklahoma Press 1996, p. 185. 109 Huyse and Dhondt, La repression des collaborations, pp. 110 ff IIIII'IIIIV ff >■ 1 ■ • ial and administrative talent. Value judgments about tradeoffs backward-looking task of justice and forward-looking task of n are also, of course, part of the explanation. Considering information, transitional justice is hampered by a also arises in other legal cases, viz. that the guilty have an destroy evidence of their guilt. When they are in a position of 'er, they also have the opportunity to do so. In Argentina, [The National Commission on Disappeared Persons] tat military president Bignone had ordered the destruction of ; program of repression".110 Even earlier, one reason behind ;arance" strategy in Argentina may have been to "stall into the facts".111 For such reasons, "evidentiary constraints mited the number of human rights trials even without laws cope of prosecution".112 In Eastern Europe after 1989, some y files were destroyed, but this does not seem to have been dus obstacle to transitional justice. Rather, the problem was lently of any destruction the files were both underinclusive arts would often not be listed113) and overinclusive (some s were invented by the security police to fill their quotas). ITie law may also act as a constraint on transitional justice, is always possible to violate, bend or interpret the law, a heated political climate, the need of new democracies to rule of law and make a clean break with their predecessors h behavior very costly, (i) The pre-authoritarian legal system ti the procedures that are adopted when the authoritarian d to account. If the Danish was trials relied heavily on gislation, it was partly because the Danish constitution lacks a ban on such procedures.114 The Norwegian trials by contrast, by and large respected the constitutional ban on retroactive legislation, except in a few cases involving the death penalty for war criminals of foreign nationality.113 (ii) The authoritarian legal system may also serve as a constraint. According to Nino, "when the new democratic regime is legally continuous with the old authoritarian one and the human rights violation to be tried were legally protected at the time of their commission or afterwards (say, by an amnesty law), the principles against ex post facto reversal of that legal protection create formidable obstacles to retroactive justice. This occurred in Eastern Europe, Spain, and Chile."116 (iii) The post-authoritarian legal system may also constrain political measures of retroactive justice. The Hungarian constitutional court, for instance, has been a very effective constraint on the desire of parliamentarians to restore property to the original owners and to enlarge the scope of prosecution by suspending the statute of limitations. The democratic forces may also be constrained by their own past acts. As noted earlier, wartime legislation on collaboration served not only to lay the groundwork for future trials but also to dissuade in the present. What is a threat for the collaborators will also, however, be seen as a promise of harsh punishment by the population at large. In his 1979 book on the Norwegian war trials, Johs. Andenass cites from an article he wrote in 1945, where he asserted that one could have been content to "Hang the leaders and let the others go", yet added that "in the given situation, this was hardly practical politics. [...] The government and resistance propaganda, which was intended to deter the collaborators and fortify the wavering, had greatly inflated expectations about the war trials."117 .1 Evil on Trial, p.80. - Report of the Argentine Commission on the disappeared" (extracts), ransitional Justice, vol.Ill, pp.3-47, at p. 13. er, "Settling accounts: The duty to prosecute human rights violations 3", in Kritz (ed ), Transitional Justice, vol.1, pp.375-416, at p.403 note ) one estimate, in Slovakia at least 16,000 top-level agents were not ster ("Memorandum on the applicability of international agreements to v", p.341, note 11). 114 Tamm, Retsopgeret efter Besaettelsen. pp. 737-44. The minister of justice at the time defended retroactive legislation by forward-looking arguments: "if the country were again to fall in the hands of an enemy, should it remain defenseless against treason and murder because legislation is paralyzed and nobody in peacetime had envisaged crimes of this gravity?" (ibid p .738). Om LandssvikoppBJ0ret. pp.83-94, 513-17, Andenaes, Pet Vanskelige Oppgjgret. pp.207-19. Also, as noted above, the Ministry's denial of retroactive punishment was less than convincing. 116 Nino, Radical Evil on Trial, p. 120. 117 Andenaes, Pet Vanskelige Oppgieret, p.268-69. Although Andenass does not say why a more limited purge e been "impractical", he may have had in mind the risk of dng matters into their own hands to obtain the justice denied e courts. In other cases, the risk of popular justice has certainly i heavy constraint on what the authorities could do. If the ithorities had adopted regular (and therefore slow) procedures, smaller number of individuals and abstained from harsh (notably the death penalty), they might have triggered even jarriages of justice - lynchings, pillages, summary executions -they were trying to prevent. This constraint is a constant theme iture on transitional justice in the German-occupied countries.118 e measures - arbitrary internments and introduction of the death lat the authorities sought to justify in this way had other causes ie desire for vengeance and the need to secure society against dangerous individuals also played a role.119 Motivations. Following La Bruyere120, I have found it useful human motivations in three main categories: reason, interest, n. (In a cross-cutting perspective, discussed below, they can be into consequentialist and non-consequentialist.) By reason, I iind any impartial consideration of the common good or of ights. By interest, I have in mind any consideration of individual dvantage, be it in terms of life, liberty, money, power, fame or valued good. By passion I have in mind the traditional set of lescribed, for instance, in Aristotle's Rhetoric. In processes of 1 justice, all of these motivations come prominently into play, go on to illustrate them with examples, I shall make two on the relations among them. First, to profess a certain motivation (to oneself or to others) ■f that one's behavior is guided by it. It is a commonplace that :n present themselves to others as being swayed by other and nd Dhondt, La repression des collaborations, pp. 98, 105-6; Tamm, efter Besaettelsen. pp.75, 80, 105, 120, Lottman, L'epuration, pp. 110, 1. id Dhondt, La repression des collaborations, p. 98; Tamm, Retsorjggret :lsen. pp 80, ]05. icteres IV.77. For a fuller discussion, see my Alchemies of the Mind, from Cambridge University Press, Ch.V and passim. nobler motivations than those which actually shape their behavior. An emotional desire for vengeance, for instance, is often presented as an impartial desire for retribution. People can also deceive themselves about their true motivations. When civil servants argue that those among themselves who obeyed the orders of the authoritarian regime should be let off lightly, they may sincerely believe themselves to be motivated by impartial concerns for justice, yet corporate interest may provide the ultimate explanation. Second, the relation between ultimate motivations and policy preferences is many-one radier than one-one, whence the possibility for alliance formation.121 I return to this issue below. Here I shall only illustrate the idea with Nino's account of how in Argentina, the military and human rights organizations [...] converged on many tactical courses of action. For instance, both believed that every act performed during the repression could be deemed atrocious or abhorrent; the human right groups believed that justified widespread prosecution, while the military saw it as a basis for an amnesty. [...] A similar convergence occurred when the human rights groups criticized the government and helped formulate national and international opinion that tarnished the government's social and international standing. The military welcomed this since it ultimately undennined the government's credibility. Military intelligence therefore helped human rights groups spread rumors that Alfonsin had negotiated with Rico [a Lt.Col. heading a military rebellion in April 1987] on Easter Sunday.122 Consider first reason as a motivation. Within this category, we may first draw a distinction between backward-looking and forward-looking considerations, and then several further distinctions within the latter category. Pure backward-looking considerations can be rooted either in the rights of victims or in the duty of the state to prosecute. In the process of property restitution in Eastern Europe, Czechoslovakia has been most active in advocating restitution in kind on the basis of the inviolable rights of the original owners. Truth commissions around the 121 As I explain in Local Justice, pp 172-74, alliance-formation on the basis of different ultimate motivations is also common in the allocation of scarce goods. 122 Nino, Radical Evil on Trial, p. 116. ased on the "right to truth" of the victims,1" With regard to Dsecution, human rights organizations often adopt a pure philosophy. In Argentina, Nino writes, "the human rights ice toward retroactive justice was intransigentiy retributive. : to punish each and every person responsible for the abuses, f their degree of involvement. They held a Kantian view of even if society were at the verge of dissolution, it had the jh the last offender."124 Often, these backward-looking considerations are conflated mentialist arguments. The right of victims is sometimes h die needs of victims. It is argued, that is, that victims of past will benefit psychologically from punishment of the or at least from knowing who they are, and that these benefits fic policy measures. This argument seems to be shaky on 1 as on factual grounds. Morally, it is not clear that the needs s can justify a particular treatment of the wrongdoers.123 Many repugnant the implication that wrongdoers whose victims have died should, other things being equal, be let off more ;tually, it is not clear that tmthfinding not followed by vill produce catharsis. In some cases, it may rather produce a id hardening of the anger. According to one writer, "no truth to date has caused a situation to become worse."126 A more ement can be taken from a comment on the opening of the files: jermans are not so concerned with the legal and moral Ications. They simply want to know the truth, no matter what ;t. As Rainer Eppelmann, a minister in the last government of DR and currently a deputy to the Bundestag, said, 'After \een truth commissions", p.230. :al Evil on Trial, p. 112; see also the debate between Nino and Diane Critz (ed.), Transitional Justice, vol.1, pp.375-438. 1 argument, criticizing procedures that are chosen to meet the needs of ral and not only those of the victims, see M. Osiel, "Ever again: legal if administrative massacre", University of Pennsylvania Law Review 1-704. leen truth commissions", p.230. reading your file, you are wiser but also poorer'. It's true - those who read their files lose many friends, their idealistic memories of resisting totalitarianism, their faith in the loyalty and honesty of bosses, neighbors, even family members. Those who support opening up the Stasi archives believe that people need to know the truth - the whole truth, no matter how painful it is. Doing so, in their opinion, will not only touch off a wave of lawsuits and perhaps even acts of revenge. More importantly, once the initial disillusionment and bitterness pass, a feeling of relief and catharsis will follow. Perhaps they are right. But will it happen during the lifetime of tliis generation?127 The unconditional respect of the property rights of former owners also, in some cases, turns out to be grounded in instrumental considerations rather than in natural law. Thus in Czechoslovakia, "comprehensive restitution is seen as essential by government because it demonstrates that Czechoslovakia is serious about upholding property ownership rights".128 Here, one impartial consideration (economic reconstruction) is disguised as another one (restitution). In addition, restitution to the original owners was seen as an indirect form of punishment - by withholding benefits - of the former nomenklatura. "There were fears that state property offered for sale rather than distributed on the basis of 'natural' restitution would fall into the hands of a new class of private owners largely recruited from former 'apparatchiks' who, unlike the average citizen, had sufficient money to buy business offered for privatization in that way".129 Here, one backward-looking motivation (vengeance) is disguised as another one (restitution). Forward-looking arguments can be utilitarian or non-utilitarian. In the former category one can make a further distinction between reconstruction and deterrence as the goals that transitional justice is supposed to serve. As just mentioned, some apparently backward-looking measures are, on closer inspection, intended to serve the goal of 127 H. Hartwig, "The shock of the past", in Kritz. (ed). Transitional Justice, vol.11, pp.612-14, at p.614. 128 Michael Neff, "Eastern Europe's policy of restitution and property in the 1990's", in Kritz. (ed), Transitional Justice, vol.11, pp 579-81, at p.581. 129 V. Cepl, "A note on the restitution of property in post-Communist Czechoslovakia", in Kritz. (ed.), Transitional Justice, vol.11, pp.581-85, at p.583. tion. Other measures are explicitly designed to serve that end. WW II in Norway, compensation for economic losses (other :stitution of confiscated property discussed earlier) was guided rinciple of reconstruction rather than by backward-looking of entitlement. The loss of luxury goods was not compensated isated only at a lower rate, and the overall economic position of ual was also taken into account.130 The forward-looking goal of deterrence is often used to Drous prosecution of the agents of and collaborators with the an regime. "The fulcrum of the case for criminal punishment is he most effective insurance against future repression."131 This although extremely widespread, is somewhat shaky. First, even is are harshly punished now, how can future would-be violators they, if overthrown, will be treated in the same way? Incentive suppose stable institutions, which almost by assumption do not )nd, if the threat of harsh punishment is in fact credible, it may ays. Although it will make it less likely (but not impossible) that 1 occur in the future, it will also make coup-makers more 3 step down. The net effect of retribution on future abuses could e or negative. This mechanism may even be at work across )rders: it has been argued that if South Korea had imposed harsh its on the generals that presided over the transition to ', it would have increased the reluctance of leaders elsewhere in to step down.132 Third, if the military remain a strong force in ling av J0disk Eiendom i Norpe under den 2. Verdenskrie. pp.45-50. In : Directorate for Compensation took account of whether a claimant could nave expected to receive the full amount to which he would have been er normal rules of inheritance. Thus since Jews whose families had died in nation camps could not have expected to inherit all their relatives, the ' received was correspondingly curtailed (ibid., pp.98-102). The reasoning nsistent with the general forward-looking principles adopted by the »er, "Settling accounts", p.377. obably true that neither the generals who run Myanmar , nor President ndonesia, nor the Communist Party in China, will be encouraged to move nocracy by the fate of Messrs Chun and Roh. After all, Mr Roh ceded icefully as any military man can. Now he has fallen victim to the process of tion that he helped to foster. The moral drawn by Asia's nervous dictators society, harsh retribution may provoke them to take power again, as almost happened in Argentina.133 In addition to utilitarian arguments, arguments from rights-consequentialism are not uncommon in transitional justice.134 Rather than the respect for rights and the duty to prosecute rights-violations being absolute side constraints on action as they are on the rigorous retributive conception, they can enter into the goal of action. Specifically, one might design transitional justice to nrmimize the sum of rights-violations On any given occasion, that is, one may proceed more leniently or more harshly than full respect for individual rights would dictate, if deviation from the ideal on that occasion serves the goal of rrunimizing deviations overall. For an example of how less-than-optimal prosecution of rights violations may serve the goal of miiiinrizing total rights-violations, consider the case of Argentina. Defending Alfonsin's moderate policy, Nino writes that "if he threatened democracy through trials and weighty sentences to discourage human rights violations, he might in fact be risking future violations".135 For examples of how more-man-optimal prosecution of rights violations may serve the goal of minimizing total rights-violations, consider what happened in German-occupied countries after the liberation. The use of martial courts, harsh sentencing and arbitrary internment may have involved less rights-violation than what would have happened spontaneously in their absence. I am not taking a stand on the validity of these claims, only noting that they have on occasion played a causal role in shaping transitional justice. Consider next the role of interest. Most obviously, agents of the authoritarian regime have an interest in avoiding prosecution or, failing that, in mild sentences. Conversely, those who fought against the authoritarian regime have an interest in avoiding prosecution for any may well be that, when democrats are at the door, lock them up rather than usher them in" ("The quality of Korean mercy", The Economist August 31 1996). 133 For partly similar arguments against the deterrence effect argument, see also Nino, Radical Evil on Trial, p.144-45. 134 For this idea, see R.Nozick , Anarchy, State and Utopia. Oxford: Blackwell 1974, p.28. 135 Nino, Radical Evil on Trial, p.l 10. i www m w m allings they may have committed.136 Also, those who lost their otherwise suffered economic losses have an interest in >n or restitution. Thus in Hungary, "the Independent s Party raised the issue of reprivatization [..] during the iipaign of 1990. After the election the Smallholders became *est part in Hungary; they not only participated in the coalition but succeeded in forcing it to draft a bill on the on of agricultural land."137 The role of party interest in the shaping of transitional justice important. This is obviously true when, as in Eastern Europe, regime retains a presence in the competition for votes in free et party politics among the winners can also be crucial, iny transitions take place in an atmosphere of national unity, it not take long before party interests come to the forefront. In jpe, a nasty case arose in May 1992, when, as part of his uggle with President Walesa, Prime Minister Olszewski flimsy list of high public officials suspected of collaborating ret police.138 With regard to Argentina, Nino summarizes the ics as follows: ovemment feared that if it was seen as too lenient with the y, that would impair its social ascendancy and ultimately its ral chances. Indeed, that is what happened in 1987. iition parties, on the other hand, feared that if the government )o successful in its quest for retroactive justice, the Radical would be unbeatable. The parties were united, however, in the lat if they gave too many concessions to the military, it would possible to consolidate democracy, finding themselves in ons similar to those of Frondizi and Illia [former Argentine s], where the government was subjected to [...] permanent ids from the military.139 ■licit contemporary reference to this interest, see Tamm, Retsopggret en, p.669. y, "Judicial review of compensation law in Hungary", In Kritz (ed.), stice, vol.11, pp.667-85, at p.671-72. "Olszewki's ouster: Poland's political tribulations", RFE/RL Research e 1992. al Evil on Trial, p. 110. The Argentinean parties operated within a spectrum, where too few concessions to the military were as dangerous as too many concessions. Within these constraints, Alfonsin wanted to be as severe as possible, whereas the Peronists wanted to constrain Alfonsin's policies to be as lenient as possible - not to protect the military but to prevent Alfonsin from taking the credit for punishing them. In German-occupied countries after WW II, party politics played an important role in shaping transitional justice. In Belgium and Denmark, the socialist parties maintained relatively strict policies so as not to be outflanked on their left by the intransigent Communist demands.140 In Belgium, members of the opposition suffered loss of civil liberties just before strategic elections, to deprive them either of their right to vote or their right to stand for office.141 The political landscape was complicated by the division between the Flemish and Wallon communities, and the role of Flemish nationalism. While the socialist wanted to use severe retroactive measures to eliminate Flemish nationalists from the voter register, the Catholic party promoted clemency to prevent the formation of a Flemish nationalist party that might drain votes from the Catholics.147 Consider finally the role of passion. This motivation can either play a direct role in animating the actors that are responsible for shaping transitional justice, or an indirect role as a motivation of other actors who enter among the parameters of the decision-makers. Earlier I have discussed the (presumably dispassionate) attempts by political actors to preempt or contain popular passion. Below, I indicate how legal actors may be subject to emotional mechanisms that require political responses. In addition to this indirect role of passion in shaping transitional justice, it can obviously exist in the main actors themselves, be they agents of the authoritarian regime, resistance leaders, human right activists or democratic politicians. At the individual level, fear of punishment can certainly have motivated many agents of the authoritarian regime, but at the political 140 Huyse and Dhondt, La repression des collaborations, p. 153; Tamm, Retsopgeret efter Besasttelsen. p.259. 141 Huyse and Dhondt, La repression des collaborations, pp.31, 151-52 142 Ibid., pp. 288, 181-82. icides with the simple interest in not being punished.143 Much rtant in shaping transitional justice are the emotions of anger towards these agents. The difference between the two emotions tated by Aristotle: "Now whereas anger arises from offences self, enmity may arise even without that; we may hate people ause of what we take to be their character. [...] Much may make the angry man pity those who offend him, but the hater rcumstances wishes to pity a man whom he once hated; for the have the offenders suffer for what they have done; the other s them cease to exist" (Rhetoric 1382a 2-16). Anger is triggered by the actions of the offending person, not iracter. It treats the target individual as responsible for his id as capable of guilt feelings. Hatred, by contrast, is triggered ef that the offending person is intrinsically bad and devoid of ogs. Perpetrators of genocide and torture embody what Nino ;al evil". In his opinion, "the proper response to the worst s is to suspend reactive attitudes, similar to what we do with pie".144 In this normative perspective, incarceration for life he appropriate way of treating radical evil. In a behavioral , hatred and a desire for the death penalty - so that the offender se to exist" - seem more likely reactions. By contrast, actions / trigger anger may also generate pity, as Aristotle noted, and a lemency. Earlier, also citing Aristotle, I referred to the tendency for spend itself' as an explanation for the decreasing severity of in the WW II war trials. A contributing factor is the general t of human life in wartime that makes the death penalty seem ae than under normal circumstances.145 In many German-Duntries, the inequality of sentencing that became evident after istinction between the emotion of fear and fear as a mere complex of eliefs (as when we say we're afraid it's going to rain) see R. Gordon, The the Emotions. Cambridge University Press 1987, p.77 and passim. lical Evil on Trial, p.141. :endency, see Huyse and Dhondt, La repression des collaborations and it Vanskelige Oppgi0ret. p. 182. The mechanism may be related to the money to suffer a temporary devaluation in the context of large purchases and D. Kahneman, "The framing of decisions and the psychology of nee 211 (1981),553-58). a few years led to various forms of rectification. In Denmark (through decree) and in Norway (through legislation), prisoners who had served half of their sentence were pardoned.146 In Belgium, a law from 1946 established early release, which could be granted after one half and sometimes one third of the sentence had been served.147 These measures did not always help small crirninals who might already have served their full sentence148, nor big ones who might already have been executed for crimes that a few years later would at most have gotten them twenty years of prison.149 There seem to be two related mechanisms at work in these cases. On the one hand, judges were initially much more subject to strong retributive emotions than they became later. In Belgium, according to Huyse and Dhondt, "in the first months following the liberation magistrates and judges were acting 'under the sway of passion'. [...] Sometimes the passion arose in the judges themselves, but most of the time it found its way into the courts through the channels of the written press, political pressures or sheer expressions of blackmail. The gods were thirsty, and it took months to still their thirst."150 On the other hand, the political authorities underwent a similar change of heart that made them more willing to revise the legislation in the direction of greater clemency. In doing so, they were also motivated by the inconsistencies and inequalities created by the pattern of legal decisions. In other words, I am suggesting that in revising the legal framework the political actors were motivated by concerns both of absolute justice (as their emotions abated) and of relative justice (as the abatement of the emotions of judges and jurors created inconsistencies that had to rectified). Beliefs. Two kinds of beliefs enter into the establishment of a system of transitional justice. On the one hand, there is a need to make 146 Tamm, Retsopgaret efter Bestettelsen. p.452-53. 1(7 Huyse and Dhondt, La repression des collaborations, p. 169. 148 Huyse and Dhondt, La repression des collaborations, p. 170; Tamm, Retsopg0ret efter Beszettelsen. p.446. In Denmark, some of those who (i) received short sentences and (ii) were tried early actually served longer than those who had been sentenced to longer sentences (ibid., p.449). 149 Huyse and Dhondt, La repression des collaborations, p. 125. 150 Ibid., p.267, citing a statement in parliament from 1948. 1 1 ■ I ■ f 1 lates of the number of cases that may qualify for prosecution, n or restitution, the capacity of the legal system, the financial r the new regime, the availability of evidence, and related the other hand, there may be a need to form causal beliefs :ely effects of various policies. Without denying the practical if the former, I shall mainly focus on the latter set of beliefs. The various motivations discussed above may be reclassified First, there are consequentialist motivations that include (i) (ii) the consequentialist subset of impartial motivations, such tism and rights-consequentialism. Second, there are non-hst motivations that include (iii) passion and (iv) the non-list subset of impartial motivations, such as pure retributivism ement theories. To implement (iii) and (iv), there is no need al beliefs. Given the principle that "Ought implies can", it e be necessary to form various factual estimates. Even if one verybody who suffered under the authoritarian regime is 1 compensation, the coffers of the state may not allow for this here is enough money to compensate the victims, the further policy are irrelevant. consequentialist motivations depend, for their imple-ucially upon nomothetic beliefs about ends-means relation-opinion, the social sciences are very far from always being e such law-like beliefs.151 In many cases, they can only offer frequently occurring and easily recognizable causal patterns jgered under generally unknown conditions or with consequences. Let me illustrate the two subvarieties of Ttplicit in this definition by examples from the previous dis- f we ask how the victims of oppression will be affected by dentity of their oppressors, there are two possible answers. ;e may bring catharsis and peace of mind, or it may harden teir anger. Each reaction embodies a specific mechanism, jered under "generally unknown conditions". If we ask e punishment of human rights violation today will deter ttors so as to reduce the amount of violations in the future, we must take account of two different effects. On the one hand, and assuming that the deterrence works, the expectation of severe punishment if the dictatorship eventually falls makes it less likely that it will be established in the first place. On the other hand, and assuming that the deterrence is not so strong as to make the probability of a dictatorship fall to zero, the same expectation will make future dictators less willing to step down and more willing to use violence to maintain their regime. Since I do not think we can show that in some mdefurite future the net effect will go one way or the other, severe sentencing has "indeterminate consequences". As the reader will have noted, in the last paragraphs I have stepped outside the explanatory or positive framework that I have adopted in most of this article. Returning now to that framework, I can only remark that many regimes have based their policies on beliefs about the cathartic powers of truth and about the beneficial deterrent effects of severe punishments. Also, I have noted that transitional authorities have relied on beliefs about which measures - perhaps more than optimally severe, or less than optimally severe - would minimize the overall sum of rights-violations. These cases are, perhaps, less deserving of skepticism. It does seem likely, for instance, that insisting on full pre-war legality after d\e liberation of the German-occupied countries would have defeated its purpose. Aggregation mechanisms. One cannot take it for granted that all those who have some power to shape transitional justice come to the process with the same beliefs, values and policy preferences. Whenever initial policy preferences fall short of unanimity, the actors must rely on some mechanism of aggregating them to reach a decision. Aggregation mechanism include not only formal procedures of voting, but all procedures that are capable of yielding binding decisions. Among equals, the main aggregation mechanisms are arguing, bargaining, and voting, used singly or in combination with each other.1" Although binding decisions can also be taken by the executive power (president or I draws on Ch.I of Alchemies of the Mind, to which the reader is er discussion. 152 For a more extensive discussion of these three aggregation mechanisms, see my Introduction to I Elster (ed), Deliberative Democracy. Cambridge University Press 1998. :) without the involvement of other actors, the selection of the ; ultimately made by aggregating preferences.153 Consider first bargaining. In transitions to democracy, the the authoritarian regime often try to strike a deal that will m from prosecution and their property from confiscation, re do not know the details, something of the sort must have i 403 B.C. More recently, the liberation of Denmark after WW several examples of bargaining. When the Council of the proposed the use of special courts to judge the collaborators, it bly intended as a bargaining chip rather than as a serious Vs Frode Jacobsen, a central figure in the Danish resistance, e time, it was doubtful that "the stuff about the judges" would 1 by parliament, but "we cannot begin with the compromise".154 frequently stated, by Jacobsen and others, that immunity for d killing of informers was part of a deal struck before The question that haunts all bargains of this sort is how the iade by the democrats can be credible. Once they are in power, keep them from reneging? In fact, will there not be ing popular pressure to prosecute the authoritarian leaders? In an case, we may suspect that Sparta served as an implicit of the deal that had been struck. The Danish resistance could count on their immense moral prestige in the population, ns from military dictatorships, the armed forces often retain heir clout to enforce the bargains. In the negotiated transition to in Chile, for instance, the democratic forces had to substitute hment of a Truth Commission for a repeal of the 1978 amnesty 2 transitions to democracy in Eastern Europe, some of the : leaders may have hoped that the Soviet Union would serve as bed by Huyse and Dhondt, La repression des collaborations, pp.80, 149-sting case arose in Belgium, where the first government of national unity 1) was authorized by parliament to regulate transitional justice by decree-:legation law remained in force under the center-left government that m Acker II), which used it to pass important and potentially controversial debates or votes in parliament. itsopeeret efter Besaettelsen, p.446. 66 ff. Tamm believes, however, that the deal was probably implicit and ne to be represented äs an explicit agreement. a guarantor. If they did, they were proved wrong. In Hungary, for instance, reform Communists claimed that the law passed in 1991 to suspend the statute of limitations for certain crimes violated the "gentleman's agreement" that had been made during the Round Table Talks between government and opposition in 1989.156 Although the Constitutional Court struck the law down, the alleged promise played no role in its decision. In South Africa, the white minority could rely on warnings rather than on threats.157 They could say, credibly, that if the promises of power sharing were not respected, the white elites would leave the country. When the policy choices are the exclusive domain of the new democratic forces, they are usually made by normal democratic procedures of deliberation and voting, constrained by judicial review. These procedures may or may not include representatives of the earlier regime. In the German-occupied countries after WW II collaborators were excluded from the political process. In most East European countries after 1989, the Communist parties or their successors were represented in the parliaments that legislated on transitional justice. In most places, however, they remained a minority during the period in which these laws were passed. To cite but one obvious example, the 1993 Czech law declaring the former Communist regime illegal was passed against the votes of the Communist deputies. In the politics of transitional justice, two groupings may be animated by the same motivation, but differ in their causal beliefs and hence in their policy preferences. Also, as mentioned earlier, two groupings may differ in their motivation but agree in their policy preferences. One can often observe, therefore, friends who behave like enemies and enemies who behave like friends. Let me elaborate on tins point. Those who share the forward-looking values of reconciliation and reconstruction may differ in their causal beliefs about the policies that will best promote these goals. In Eastern Europe as well as in Latin America, one hears over and over again both that "To move forward, we must first come to terms with the past" and "To move forward, we must resolutely ignore the past". Those who subscribe to the first argument will 156 J. Pataki, "Dealing with Hungarian Communists' Crimes", in Kritz. (ed), Transitional Justice, vol.11, pp.647-52, at p.650. 157 For this distinction, see Alchemies of the Mind. Ch.V.3. r m 111 II MMMWvMMMMM MMl those who subscribe to non-consequentialist ideas of justice, of those who are mainly concerned with vengeance. Those >e to the second argument will find allies in those who have a rest in the past being ignored. A conjecture about motivations yFig.l: Intensity of demand for retribution B Degree of complicity with authoritarian regime The rough hypotheses embodied in the diagram are the nong the members of the resistance or opposition movements thoritarian regime, we find a bifurcation of motivations. In I around A in the diagram, the past sufferings and struggles demand for retribution. In those located around B, the same te opposite effect (cp. the comments above on opposing triggered under "generally unknown circumstances"). In Ida, for instance, Vaclav Benda and Vaclav Havel represent and B respectively. Those who are located around D will t insist on retribution. Those in the gray area around C, however, are often very demanding punishment of those who behaved badly, those opportunistically to the regime may feel that they are joining those who behaved heroically. In Belgium, the draconian posed by Antoine Delfosse, minister of justice in the exile "may have their origin in a need to stifle doubts created by his behavior during the first months of the occupation".158 In France, a defense lawyer explained the severity of the first sentences by "the fact that many jurors were latecomers to the resistance and were eager to demonstrate a zealousness winch they had not shown earlier. Later, when the deported came back from Germany, one had much more thoughtful jurors who [...] did not feel the need to prove themselves".159 Referring to retroactive justice generally, Nino cites disgusted reactions to the hypocrisy "when those who were silent in the past suddenly become vociferous advocates of retroactive justice".160 Whereas the leaders of the resistance or opposition movements often insist on abiding strictly by the rule of law in order to sei the new regime on a firm footing, people in the gray zone may be so imbued with the lawlessness of the former regime that they are willing to short-circuit the regular process of the law. Alexander Zinoviev describes how the process of destalinization in the Soviet Union was itself carried out in a typically Stalinist way. For a short while after 1956 it was simply non-obligatory to mention Stalin in all contexts, but soon it became obligatory not to mention him.161 Similarly, the process of de-comrnunization in Eastern Europe has sometimes been carried out witlt something like Communist disregard for individual rights. In many cases, the political landscape after transition is occupied by three political groupings. First, there are democrats who emphasize forward-looking measures of reconciliation and reconstruction. As argued above, these will often be found around B in Fig.l. Second, there are democrats who give priority to backward-looking measures of prosecution and restitution. This group may include some people around A and some around C in the diagram. Third, there are representatives of the pre-democratic regime, either in the form of an autonomous military or in the form of political parties. These fall obviously around D in the diagram. In German-occupied countries after WW II the third group did not exist, and the conflict between the first two was less acute than in other cases. The following comments do not, therefore, apply to these cases. 158 Huyse and Dhondt, La repression des collaborations, p.69. 159 Lottman, L'epuration. p. 272. 160 Nino, Radical Evil on Trial, p.39. 161 J. Elster, Political Psychology. Cambridge University Press 1993, p.94 S.s indicated earlier, there is a tendency for alliances to form rst and the third groups. Whether motivated by the common ;lf-interest, they want to forget the past and move forward, ibers of the first group are somewhat more inclined than the ; in confrontation with the past, they tend nevertheless to be 3. It is then tempting for members of the second group to and the third groups together as being "soft on authorita-s tendency may be especially pronounced in individuals g. 1.) In Czechoslovakia, for instance, some members of the ssition were affiliated with the Communist party before ;h they left the party and lost their jobs after the Soviet proposals to limit confrontations with the past were often tspicion. In Poland, there was a ludicrous episode in 1992 retributionists accused Walesa himself of having been h the Communist regime. When President Alfonsin erate stance, because he thought that society had to move :ared that a strict policy of retribution might provoke the ldermine the emerging democracy, human rights activists iected him of being "soft on the military". justice" and the role of justice in wage determinations.1" A key task in this domain is to identify and explain the different types of justice motivations that animate social actors, as well as their relation to interest and passion Another important task is to investigate the extent to which the conceptions of justice held (or professed) by the actors serve to explain their behavior.163 • Transitology and the empirical study of justice are subject, I believe, to the same methodological procedures. Rather than looking for general law-like explanations or "theories", we should try to identify recurring causal patterns or "mechanisms". Although apparently modest, this program is actually quite ambitious. It requires a concern for the fine grain of events that larger theories neglect. In this programmatic article, I have admittedly not been able to go far in this direction, but I hope some of the discussions suggest the kind of work that is likely to be fruitful. VI. Conclusion e behavioral study of transitional justice lies in the two more general domains. On the one hand, it is part of to be called "transitology", the study of regime transitions, level, it can be defined as the study of the disequilibrium he between the pre-transitional and the post-transitional ludes not only the dynamics of the transition itself, but also momic reconstruction, constitution-making and reckoning ji important task - occasionally mentioned above - is to on among these post-transitional activities. Economics, ice compete for the same scarce resources, and may also :ly or negatively with each other. the other hand, the behavioral study of transitional justice te empirical study of justice more generally. In addition to :e, this domain includes (among others) the study of "local 162 See for instance M. Lerner and S. Lerner (eds), The Justice Motive in Social Behavior. New York Plenum Press, aptly subtitled "Adapting to times of scarcity and change". 163 I argue in Ch.V of Alchemies of the Mind that even when these conceptions of justice are rationalizations of other motivations, they can nevertheless have independent explanatory power, due to (i) the need for consistency and (ii) the need to avoid rationalizations that are too obviously a mere disguise for other motivations. B ■ & ■ ■ ■ ■ I,