Justice in circumstances of transition: comments on Colleen Murphy’s theory of transitional justice as justice of a special type

ABSTRACT

Colleen Murphy has argued that in circumstances of societal transition only one special type of justice is applicable: ‘transitional justice’, a type of justice not reducible to any other type or types (such as retributive, distributive, restorative or corrective justice). I take issue with Murphy’s conclusion, showing that retributive, distributive and corrective justice all feature as isolable component parts in her own positive account of transitional justice. I also argue that restorative justice is applicable and important in transitional societies when the state itself has perpetrated serious wrongs. Murphy claims that each distinct type of justice is a response to a unique ‘basic problem of justice’, triggered by a background set of ‘circumstances’. However, I argue that identifying such a basic problem neither necessarily means the circumstances in question call for a unique type of justice, nor is sufficient to determine which type of justice is most salient in the circumstances. What is more, I show that Murphy applies her own methodology inconsistently in her treatment of transitional societies and stable democracies. I argue that what Murphy calls ‘transitional justice’ is composed of familiar types of justice as well as other moral values, but also regrettable – though often unavoidable – injustice.

KEYWORDS:

• Transitional justice
• corrective justice
• retributive justice
• restorative justice
• distributive justice

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

George Hull is Senior Lecturer in Philosophy at the University of Cape Town. He received a PhD from University College London in 2012 and is the editor of The Equal Society: Essays on Equality in Theory and Practice (Lexington Books, 2015).

Notes

1. See Wolff (2015, 21–22) for the distinction between ‘ideal’ and ‘real-world’ political philosophy.

2. Page numbers, unless otherwise stated, refer to Murphy (2017).

3. The example is from Bovens (2008, 222).

4. Here I draw on aspects of the account of apologies and forgiveness in Bovens (2009).

5. See Anderson (2010) for the distinction between ‘metric’ and ‘rule’ in ‘[t]heories of distributive justice’ (81), and advocacy for a capabilities metric.

6. Note that my claim is not that any normative theory which makes use of the concept capability is ipso facto a theory of distributive justice. My claim is that, when a normative theory utilises the concept capability to set a maximum level for how badly-off any member of a society can become if the society is to count as honouring the fact that society-members are, and should be treated as, equals, that theory includes a familiar conception of distributive justice framed in terms of capabilities.

7. Murphy draws principally on Hampton (1992) and Duff (2013).

8. I have argued (Hull 2015) that affirmative action programmes are sometimes well-suited to perform this function.

9. This distinction between laws or institutional norms and the fundamental values which the former should embody is precisely the distinction which, in the previous section, I argued Murphy overlooks when she claims that the expressive theory of retributive justice is inapplicable in the circumstances of transition.

10. Williams (1965, 117) argues for the position that ‘[m]oral conflicts are neither systematically avoidable, nor all soluble without remainder’. See also the discussion of ‘tragic choice’ in Nussbaum (2011, 37–39).