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Elster, Jon. Closing the Books: Transitional Justice in Historical Perspectives.

ELSTER, Jon. Closing the Books: Transitional Justice in Historical Perspectives. Cambridge: Cambridge University Press, 2004. iv + 271 pp. Paper, $21.64--When an autocratic regime is replaced by a democratic or constitutional one, a burning question arises: how shall the state deal with malefactors from the previous regime, and how shall it compensate their victims? That, simply put, is the issue of "transitional justice" to which this book addresses itself through meticulous exploration of manifold regime transitions around the world, ranging in time from 411 B.C. to almost the present. The subject bristles with far-reaching moral questions about retribution and reparation, but this is not a work of moral philosophy. In what is intended as a rigorously "empirical study of justice" (p. 80), Elster eschews normative judgment about what the actors should have done in favor of analytic inquiry about why, given their various circumstances, they did what they did, including the motivations, opinions, politics, and other causal factors operative in their decisions and in the problems encountered. Thus we learn much of the legal (and illegal) actions of victorious Athenian Democrats in 411 and 403 B.C.; of the Germans, French, Dutch, Belgians, Norwegians, and so forth after World War II; of the East-European polities following the Soviet collapse; and of recent Latin American transitions.

As a social scientist, Elster is especially concerned with classification of attitudes and behaviors. For example, the motivations of legal decision-makers are explored under three broad categories: "reason, interest and emotion" (p. 81). Those meting out the punishments and restitutions might be motivated by their economic, political, or career interests; or they might be activated by a passion for revenge, and the passion for revenge can be driven by anger or by hatred. We are said to feel anger on account of wrongful action and hatred when we perceive wrongful action as the result of vicious character (torturers and "denunciators" are hated). The general category of "reason" poses some problems for this reviewer. Under that heading the author includes retribution--the desire to see justice done--but also, apparently, patriotic motives, ideas of the general good, and considerations of deterrence; at times this seems to be a rather loose catch-all category, encompassing whatever is not a matter of material self-interest or sheer vengeance. Of course the putatively rational purposes are very often intertwined with self-interested and emotive ones; the analysis illuminates this reality, along with the subterfuges by which actors try to make interest and emotion look like justice. Admirably, Elster does not engage in the reductionism which would claim that retributive justice is always at bottom sheer revenge, but the distinction he wants to make between them could use more inquiry. What, more exactly, is rational about the desire to have punitive justice done? An exploration of this question might well require some transcendence of the social science framework he has adopted.

The book has interesting observations to make about the several dilemmas facing would-be doers of transitional justice. Perhaps the largest one is the politically-charged issue of whether to stress retribution or reconciliation. Obviously a heavy emphasis on the former could intensify animosities, thereby disrupting peaceful reconstruction; yet the peace could also be endangered by leaving perpetrators of horrendous evils unmolested. Whether intentionally or not, Elster's presentation renders rather attractive the Athenian democrats' final option for a relatively broad amnesty. Another persistent dilemma is this: we want to punish the worst perpetrators, but we want to accomplish this through due process of law--so as to make clear that "we aren't like them." But a scrupulous commitment to due process can obstruct and frustrate the goal of substantive justice, and an understandably strong desire for substantive justice is often satisfiable only by deviation from the strict ideal of the rule of law. One recurrent theme here is the problem of retroactive legal penalties, a problem virtually unavoidable in many instances. The difficulty is familiar: certain moral wrongs cry out for rectification, though they were quite legal under the vicious state in which they were committed; shall you leave them unpunished or penalize them by what amounts to retroactive legislation (such as deprivation of civil rights for the offense of "national degradation")? Retroactivity is a serious violation of legality for which regimes like the Nazis are notorious. So is it better to finesse this predicament by recourse to some version of Natural Law or candidly to acknowledge retroactivity? A related practical matter needing to be decided is how exactly to determine what shall constitute punishable wrongdoing and how to classify degrees of it. Elster usefully considers three types of putative offenders: "fanatics [or zealots], opportunists and conformists" (p. 137). He also cites arguments which were advanced on both sides of this intriguing question: who is worse and more guilty--the fanatic whose crimes were motivated by zealotry for the cause or the opportunist who committed them for material gain?

Moral and legal philosophizers among us might wish that Elster had been willing to depart somewhat from his descriptive analytic framework so as to explore the great normative issues more intensively. But what he has done provides plenty of material for reflection about ethical perplexities, both perennial and very timely.--Harry Clor, Kenyon College.
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Author:Clor, Harry
Publication:The Review of Metaphysics
Article Type:Book Review
Date:Sep 1, 2005
Words:866
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