September 11, 2013, by Josh Bowsher

Deconstructing Transitional Justice: Opening a New Space for Critique?

In her article titled simply Deconstructing Transitional Justice, Catherine Turner notes ‘the rise of transitional justice has been stellar, but it is a field in which theory has failed to keep pace… while there has been significant critical engagement with the requirements of transition… this critique has focused on the need to ensure a more broadly defined and nuanced definition of transitional justice.’[i] To be sure, in the academy (and this is by no means meant to disparage what is no doubt necessary and thoughtful work) work has tended to focus particularly on the construction of what might be called normative frameworks, exemplified by the work of authors such as Ruti Teitel,[ii] as well as Naomi Roht-Arriaza and Javier Mariezcurrena[iii] amongst others. Simply put, it has focused on analysing the practices of transitional justice and constructed frameworks which focus on how best to fulfill the goals of transitional justice practitioners, rather than to critically engage with some of the assumptions built into what might be called something like “best practice”.

Within transitional justice then, critique might be best described as relatively marginal and, importantly, emergent part of the field. There can be no doubt that this absence therefore presents an opportunity to confront and interrogate – in a fundamental way – the core principles and assumptions which underpin the field. This brings forwards the following question: Which critical lens serves as the best primary encounter with transitional justice, or: what modes of analysis best facilitate the first series of interventions in the field with the kind of critical engagement which is incisive and productive, not only for those engaging in such critiques, but for those working in the field?

What Turner’s article does, first and foremost, is make a case for the use of a deconstructive approach, such as that famously pioneered by Jacques Derrida. With a core focus on deconstructing or unravelling the binary oppositions which constitute a given discourse or field of activity, it can serve as a means of directly destabilising the assumptions which make up the norms of transitional justice discourse. As Turner notes, transitional justice is ‘replete with antinomies or binary oppositions, that of war and peace being the most obvious.’[iv] As such, Turner argues, transitional justice is brimming with nodal points organised around binaries, where it is possible to attack the ‘essentially deconstructable structure of differánce.’[v]

While Turner’s paper goes on primarily to deconstruct the opposition between Law and Politics, which transitional justice heavily rests upon, and is, as such, a discreet document, it also feels like an invitation. Indeed, the article’s open ended mapping of the need for deconstruction (the fact that the field is “replete” with binaries) implies the need to deconstruct not only the binary between the law and politics, but all the other binaries of which transitional justice is composed, a project which is not necessarily the work of one, but that of many. This, alongside the appearance of a stream titled Deconstructing Transitional Justice at this year’s Critical Legal Conference at Queens University Belfast, would seem to suggest that a new space in which critique can find a home is beginning to open up.  One in which the undoing, destabilising, untying of core concepts is absolutely central.

Another question: What purpose would a deconstruction of transitional justice serve? At this point, we must be aware of some key criticisms of the deconstructive project as a whole. A deconstructive critique is not without its dangers. Arthur Austin in his somewhat hyperbolic and polemically titled Deconstruction: The Road to a Derridian Cul-De-Sac Where “There Is No There There” and “There is No about about for Anything To Be About,” declares that ‘Deconstruction is a system of destruction – scorch the earth…’[vi] Certainly, there is some truth located here; there is a kind of absolutism of the process which must push itself as far as possible until nothing remains. Such absolutism can seem daunting to those working in the field as academics, practitioners or both. Indeed, there is something innately aggressive, and perhaps unrealistic about a process in which the field comes to be wholly unstable and undermined. Critics therefore might be inclined to say that such a proposition constitutes an unworkable reading of the field, one which struggles to have an impact or bearing on practice. There is a very real danger then, that deconstructing transitional justice may be viewed as an essentially “academic” exercise, one which doesn’t really do much other than demonstrate the “post-structural” credentials of the writer in question.

Nevertheless, there is an inherent value in deconstruction that needs to be defended, one which can be readily seen in its opening out onto the field of postcolonial studies. Indeed, the approaches of Gayatri Spivak and Homi Bhabha, have, in their own ways, served to produce a set of ethical locations. For the former deconstruction has served to locate the “Subaltern”, whose violent structuration within the (post)colonial world prevents them from ever being able to speak.[vii] For the latter, his essay, Dissemination, has served to deconstruct the cultural production of the western nation state and demonstrate the marginal position of the migrant within it.[viii] Here, the value of both projects has been to locate marginal positions, and to highlight the violences which discourses necessarily do to them. Undoubtedly, there is something innately ethical about a practice which makes any given field aware of both the margins that it conceals, and the violence that is committed against them.

The question then is one of bridging the gap between undermining assumptions in the hope of revealing something to the field and the set of practices which dominate it. While the absolutism of deconstruction (the total undoing of oppositions) is undoubtedly powerful, the field would probably be unable to continue operating without recourse to at least some of them. In order to bridge this gap, what deconstructing transitional justice must aim for is not meaningless destruction, but the possibility of rearticulating the field, imbuing it with a knowledge of itself that serves to pragmatically locate transitional justice within a more ethical set of principles and practices. In other words, it must be conscious of opening a space in which practices can be modified and where new ones can be developed.

Of course, once it has done so it must never cease, engaging in a cyclical process in which each new articulation of transitional justice is subject to a process of deconstruction that enables the field to reflect on the unavoidable and continuous process of marginalisation. For only in critically engaging – that is, critiquing but engaging – with the field, can deconstructing transitional justice be more than a safe space for the academic of the ivory tower.

J Bowsher

End Notes

[i] Turner, C.  Deconstructing Transitional Justice. Law and Critique, 24(2), (2013) pp. 193-209.  (p. 194)

[ii] Teitel, R., Transitional Justice (Oxford: Oxford University Press, 2000).

[iii] Roht-Arriaza, N., and Mariezcurrena, J., (eds.) Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (Cambridge: Cambridge University Press, 2006).

[iv] Turner, p. 193

[v] Ibid.

[vi] Austin, A., Deconstruction: The Road to a Derridian Cul-De-Sac Where There Is No There There and There is No About About for Anything To Be About, in Cardozo Arts & Entertainment Law Journal, 12, (1994) pp. 181-191. (p. 182)

[vii] Spivak, G., Can the Subaltern Speak? In R. Morris, (ed.) Can the Subaltern Speak?: Reflections on the History of an Idea (New York: Columbia University Press 2010).

[viii] Bhabha, H., Dissemination in The Location of Culture (London: Routledge, 1994).

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