Theorizing Transitional Justice for the Colonial Past in Established Democracies: Conceptualizing Transition
In this blog post, Magali Bessone (Université Paris 1 Panthéon-Sorbonne) argues that for transitional justice to be relevant in postcolonial contexts, a normative approach to the concept of “transition” is required.
In transitional justice debates, the concept of “transition” is often elusive. Correctly assessing the meaning of transition is key to redefining transitional justice so that it can be usefully applied to evaluate whether so-called established democracies (here, France) face their colonial past in ways conducive of social justice.
Transition is often defined descriptively by the presence and implementation of transitional practices – the emergence, in given situations or at certain times, of legal or quasi-legal mechanisms (criminal courts, purges, victim compensation) and extra-judicial measures (amnesty laws, memorial policies, truth and reconciliation commissions). But if one opts for a purely descriptive approach, two problems arise.
First, in many cases, not all measures are actually implemented. One needs to decide whether the presence of one specific mechanism is necessary and sufficient to speak of “transition”, or whether a society can aptly be said to be in transition when several complementary mechanisms are implemented – do some have (normative) priority over others? In particular, a criminal trial may not be implemented if the accused are dead or impossible to identify individually with precision. Or the nature and amount of compensation may be impossible to determine in proportion to the crime because of the indeterminacy of causal relations when several generations are interposed between the crime (land dispossession, work exploitation…) and the demand for reparation. In the case of colonial wrongs, many transitional mechanisms are simply irrelevant.
In France, two main types of transitional practices have been adopted to address the colonial past: 1) memory measures – adoption of so-called memorial laws, celebration of memorial days, erection of memorial monuments, statues or street plaques, creation of a Foundation for the Memory of Slavery, official reports on the memory of colonisation (for instance the so-called Benjamin Stora report on “Memorial questions about colonization and Algerian war”), etc.
And 2) civil trials against the French state, whose objective was to ask for reparations for the descendants of enslaved persons – trials which have all been lost by the (physical or collective) claimants so far, mostly due to statute of limitation arguments. Do the memory measures suffice to be able to say that France has adopted a transitional justice approach toward its colonial past? Or is this vocabulary irrelevant in this context? One needs normative criteria in order to reply to these questions.
Second, indeed, the mere presence of practices identified as “transitional” does not prove and does not mean, in itself, that the regime that puts them in place is less repressive, or more inclusive, than that/those of the past. The willingness to openly display, through some transitional practices, that the present is different from the past is not in itself a mark of moral and political progress. Some measures can also hide the continuity of other forms of domination and inequality – for instance from colonial to neocolonial administrative categories and economic practices.
Hence the descriptive approach to transition fails to clearly identify which transitional practices are intrinsic to the concept of transition, and it does not provide the criteria with which one can evaluate the justice of these practices. The descriptive approach to “transition” needs to be abandoned for a more explicitly normative approach, one that explicitly discriminates between just, and unjust, processes of transition.
Understanding “transition”, and identifying the political relation of a society toward its colonial past as a “transitional” situation, requires to evaluate the reasons for and aims of practices directed at dealing with the past, as they are publicly expressed, or as they can be inferred from the entanglement of these specific practices with ordinary justice systems and public policies of social redistributive justice. France may be considered as engaging in transitional justice in regard with its colonial past, if one can reasonably infer from its socio-political and economic decisions when addressing former colonized populations’ needs, rights, and interests, that it is committed to substantially modify the normative principles that ground and justify the unjust structure and oppressive exercise of power relationships between former colonizer and former colonized populations – at the domestic as well as at the international level. For instance, if on the one hand, it expresses a will to acknowledge and recognize the many injustices related to the Algerian independence war, but on the other hand refuses to open and declassify archives, routinely grant research visas, or clearly identify the origin of human remains restituted as resistance fighters, it leaves room for reasonable doubt as to its commitment to justice.
In this normative approach, a just transition is defined by the materially attested transformation of publicly upheld reasons and motives for socio-political and economic measures of social justice. They should express – and can reasonably be interpreted by all concerned as favoring – political subjectivation, parity of participation, state accountability and civic trust. Measures to come to terms with the past are just if and only if they create the conditions under which it is reasonable for all to seek reconciliation among themselves and with political institutions.
If one follows this normative path to redefining transition and applying it to the relation between established democracies and their colonial past, two more points need to be taken into consideration.
1) Due to the enduring nature of the harms produced by the colonial system, the wrongs that need to be addressed are not (only) past events, but also current structural inequalities and injustices. In other words, despite the fact that, in France, slavery has been abolished more than 150 years ago, and decolonisation wars have ended more than 50 years ago, the unjust socio-political and economical organisation slave system and colonialism have set in place has not entirely disappeared from contemporary routine practices, institutional configurations, and mental representations. For instance, on the one hand, France holds a robust republican credo about the homogeneity of the French people and the illegitimacy of taking into account particular differences in the construction of French citizenship. On the other hand, the teaching of national history, and particularly of the history of slavery, differs according to the territories: in the general sections of the Hexagon high schools, nothing in the programs is said about the first abolition of slavery, or the Haitian revolution, whereas they are studied in detail in the overseas high schools, in which French history is taught with programs “adapted” to the population (see the report on education on the site of the Foundation for the Memory of Slavery)
This is why the passage of time is a double-edge sword when conceiving “transition”: on the one hand, many years have passed and many generations have died – the crimes are history; on the other hand, political, social, racial, economic relations have for a large part remained deeply asymmetrical and unaddressed as potential justice “problems” to be redressed. The relation of contemporary France to its colonial past is usefully conceived of in terms of transition and enduring injustices: it allows to acknowledge and recognize the violence, brutality and unfairness of the past, the ways in which this past is still meaningful in the present, and the significance of aiming at a better, more inclusive, future.
2) Defined as suggested above, transition is a normative concept but it is not committed to any specific definition of justice or democracy: what counts as a good enough reason for a transformative measure has to be attested by all concerned. And transitional justice does not pretend to cover the whole normative realm of justice in postcolonial societies: claiming that France still has to acknowledge and recognize the meaningfulness of its slave and colonial past, and to create socio-political and economic conditions to achieve equality domestically and internationally with its formerly colonized populations, does not mean that ordinary processes of criminal, compensatory and redistributive justice are not also indispensable when relevant.
Transitional justice is just “one among many tools” for postcolonial justice. But taken with an explicitly normative approach, transition is a very useful critical tool for justice, since it provides a clear criteria for evaluating the reality of the political commitment for transforming unjust structures.
Author
Magali Bessone is a Professor of political philosophy at Paris 1 Panthéon-Sorbonne University, member of the ISJPS (Institut des Sciences Juridique et Philosophique de la Sorbonne, UMR 8103), associate researcher at CIRESC and member of the scientific committee of the French Foundation for the memory of slavery. Her research focuses on theories of justice and critical theories of race and racism. She is the author of Faire justice de l’irréparable (Vrin, 2019), Sans distinction de race ? (Vrin, 2013), the co-editor, with Myriam Cottias, of a Lexique des réparations de l’esclavage (Karthala, 2021), and co-author with Matthieu Renault, of WEB Du Bois, Double conscience et condition raciale (Amsterdam, 2021).
Transitional Justice & Historical Redress
This article is part of the special series Transitional Justice & Historical Series, a project born of a joint collaboration between the Leuven Institute of Criminology and Avocats Sans Frontières.
