Courts: A Template and A Site of Transitional Justice Collapsing as a Model

The conventions of transitional justice posit moments in time in which breaks with the past demand accounting for horrific wrongs. Aiming to acknowledge and memorialize practices of injustices that entailed widespread acts of violence, proponents of transitional justice often call on governments to craft responses to account for their predecessors’ wrongdoing and to enshrine new commitments to fairer social orders. The paradigm is disjuncture, as past regimes are replaced and new institutions generated. Many accounts of transitional justice thus focus on how polities, undergoing substantial changes, constitute methods to depart deliberately from extant government institutions that may be implicated in the wrongful acts of the prior political order. Criminal prosecution is understood as a potential (if insufficient or unwise) alternative, and adjudication is thus the sociological habitus (to borrow Pierre Bourdieu’s term) in which these deliberately ad hoc transitional justice institutions are forged. As transitional justice has become a feature of several post-World War II reconstructions, the results have been inquiries, including and akin to public trials, to provide venues for accountings. These commissions elicit and record testimony but, unlike trials, often reframe questions of culpability to put community building and reconciliation ahead of retribution. Courts thus provide a template and a tool, but are generally taken for granted, rather than interrogated as sites of transitional justice in which radical reorganization has been required to redress the histories of systemic injustices instantiated in courts by judges. Further, few analyses examine whether and how ordinary justice has been affected by the ideas that motivate transitional justice. In this chapter, I move courts from the backdrop to center stage by sketching the impact of social movements on the reconstitution of courts in the United States. I underscore first that today’s widespread use of courts as potential fonts for rights-recognition has been so successful that it often masks their history as fonts of injustice and as institutions of exclusion in which persons of all colors, gender, and classes were far from welcome, let alone equal. Only during the second half of the twentieth century did courts in the United States became famous for requiring changes in other institutions (such as the desegregation of schools and minimally habitable prisons) and for requiring the executive and legislative branches in state and federal systems to provide remedies. Under-appreciated, under-valued, and under-theorized is that courts themselves were a locus of oppression and are one of the institutional sites that has been renovated to provide systemic redress. My second point is that what makes courts models for transitional justice institutions — their self-conscious (albeit not fully successful) efforts to be egalitarian, rule-of-law, public venues — is at risk. Transnational political and social movements of the twenty-first century are propelling shifts in the law of courts and in the methods by which disputes are resolved in and outside of courts. The results can already be felt in the United States, as the aegis of courts has been narrowed with the erosion of opportunities for state-based adjudication to provide public accounting or accountability. This loss of the option to turn to courts comes in many instances from the judiciary itself. The privatizing processes include moving out of sight decision-making in courts and revising doctrine to permit employers and providers of services to block access to courts and aggregation and instead require claimants to use private dispute resolution systems. For those who are seek to use or are brought into courts, the fees imposed limit access or become sources of debt. The remedies associated with ordinary justice go by the boards, along with healing, apology, new forms of restitution, and shared public narratives of past wrongdoings that are hallmarks of transitional justice. Hence, theories and practices of transitional justice need to take into account the contemporary pressures on systems for redress (of which courts are one example) so as to understand the dependence that transitional justice has had on public courts as a backdrop and the impact of these attacks on the aspirations animating the many innovations of the transitional justice movement.