Abstract
This paper interprets the relation between justice and legitimacy found in John Rawls's Political Liberalism and then applies it to the field of transitional justice. The author argues that transitional mechanisms can be better defended in terms of “legitimacy” than in “justice,” because the circumstances of transitional justice admit of reasonable disagreement over “just” public policy. In such circumstances, policy recommendations can always be construed as falling short of justice, thus raising plausible concerns over their normative justification. This paper attempts to answer such concerns by justifying transitional mechanisms as morally appropriate yet less than fully just. The author explains how the concept of legitimacy facilitates such a justification and how such a justification can secure the normative grounds that are ironically threatened by investigations relying on a concept of justice.
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Notes
One possible exception is Jose Zalaquett who outlines three “conditions of legitimacy” for any transitional policy. However, his use of the term “legitimacy” means little more than consistent with “contemporary values enshrined in international law and generally accepted legal doctrine” (Zalaquett 1990, p. 628).
Typically, commentators make legitimacy derivative of justice by employing the familiar idea that one must first determine what justice requires before one can articulate the legitimate use of coercive power. One variant of this view denies a close relation between legitimacy and justice in PL because it interprets PL primarily as a treatise on the legitimate use of coercive law rather than justice (Dreben 2002, p. 317; Estlund 1996, p. 68). Another splits legitimacy from justice by attaching legitimacy to citizens’ conceptions of the good rather than a justification of the right (Weithman 2013, p. 5).
Buchanan uses a conceptually loose construction of the “reasonable.” As a result, he draws the provisional conclusion that “the primacy of legitimacy may be compatible with a law of peoples that is much more egalitarian than Rawls supposes” (Buchanan 2000, p. 88 emphasis added).
In addition to these, Rawls also identifes three conditions for assessing the justification of principles: (1) a specification of certain basic rights, liberties and opportunities (of a kind familiar to a constitutional democratic regime); (2) an assignment of special priority to those rights, liberties, and opportunities, especially with respect to the claims of the general good and of perfectionist values; and (3) measures assuring to all citizens adequate all-purpose means to make effective use of their liberties and opportunities (Rawls 1993, pp. xlviii, 6; Rawls 2001a, p. 14).
This represents Rawls’s fifth “burden of judgment” (Rawls 1993, 55–56).
Neil Kritz estimates that nearly half the population was implicated as having supported the previous regime in some countries of the former Warsaw Pact (Kritz 1995, p. xxii).
This represents Rawls’s third “burden of judgment” (Rawls 1993, pp. 55–56).
The challenge is quite conspicuous in attempts to coordinate Disarmament, Demobilization and Reintegration programs with TJ measures, since the former is primarily concerned with alleviating the most egregious injustices resulting from conflict and has consequentialist aims in mind, while the latter is framed in terms of human rights violations against victims and operates with deontological considerations (Buckley and Tomb 2012).
This represents Rawls’s second ‘burden of judgment’ (Rawls 1993, pp. 55–56).
As Thomas Nagel notes, “the hardest problems of political theory are conflicts within the individual,” that is, between the personal and impersonal standpoints within each person (Nagel 1991, p. 4).
This represents Rawls’s first ‘burden of judgment’ (Rawls 1993, pp. 55–56)
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Buckley, M. The Priority of Legitimacy in Times of Political Transition. Hum Rights Rev 14, 327–345 (2013). https://doi.org/10.1007/s12142-013-0276-0
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DOI: https://doi.org/10.1007/s12142-013-0276-0