What Would Satisfy Us? Taking Stock of Critical Approaches to Transitional Justice

International Journal of Transitional Justice, Volume 13, Issue 3, November 2019, Pages 570–589

By Dustin N Sharp*

Abstract^∞

In recent years, a distinct critical turn in transitional justice scholarship has emerged, seeking to question the naturalness and inevitability of mainstream transitional justice theory and practice and to envision a broader and more holistic project. While in many ways a positive development, this newfound critical enthusiasm risks producing an unwarranted sense of pessimism and failure. This points to the need to better manage expectations as to what ‘success’ looks like even as we try to reimagine what transitional justice could become. To these ends, I draw upon and propose revisions to Robert Cox’s famous distinction between problem-solving and critical theory. To better maintain balance and perspective, I argue for the adoption of an ‘integrated’ approach to transitional justice critique that does more to engage with the difficult tradeoffs, policy choices and contextual realities that would inevitably be associated with efforts to implement an alternative vision of transitional justice.

 

Just over a decade ago, one could barely speak of a critical theory of transitional justice.¹ While the field was certainly problematized, the bedrock of the literature was largely problem-solving and policy oriented. This has since changed a great deal, and an emerging ‘fourth generation’ of transitional justice scholarship characterized by a willingness to interrogate some of the foundational blindspots and limitations of the field has gained momentum.² The critical turn has not cohered into a distinguishable ‘school’ or methodology. However, the themes addressed and charges leveled share substantial overlap. Amongst other things, critics have argued that transitional justice does too little to disturb the postconflict status quo, treating symptoms rather than causes; that it remains oblivious to multiple forms of economic, structural, cultural, everyday and gender-based violence; that it marginalizes local or indigenous traditions of peace and justice; that it clumsily applies the same thinking and tools across a range of contexts and transition types as if they were the same thing; and finally, that it constitutes a form of ideological imperialism, cloaking highly political and contestable choices in a depoliticized and technocratic idiom. These mounting critical appraisals come at a time when the field is said to be experiencing a crisis of legitimacy and effectiveness,³ and in which a more general sense of human rights pessimism pervades.⁴

At their best, critical voices have helped to question the naturalness and inevitability of what might be called ‘mainstream’ or ‘paradigmatic’ transitional justice theory and practice, and to envision a broader and more holistic project of building peace with justice in the aftermath of repression and mass atrocity.⁵ At the same time, at least part of the felt crisis of legitimacy and effectiveness in contemporary transitional justice arises out of critical theory aspirations for the field to be fundamentally transformative of social order. The trouble is, while transformation may be a useful conceptual prism for thinking about the limitations of the mainstream goals and modalities of the field, taken literally it is an improbable outcome in most transitional justice scenarios, and perhaps especially in fragile postconflict states.⁶ Given the deeply rooted nature of physical, structural, economic and cultural violence, it is hard to see how even the more holistic and progressive approaches to transitional justice advocated in fourth generation scholarship might result in the kind of institutional reform and redistribution of wealth and power that would be required.

The gap between ambitious critical theory ideals and incremental realities has the potential to produce an unwarranted sense of pessimism, disillusion and failure, even as overall empirical assessments of the field suggest meaningful if modest impacts in many contexts.⁷ This points to the need to better manage expectations as to what ‘success’ looks like even as we try to reimagine what transitional justice could become. As part of this intellectual tightrope act, I draw upon and propose revisions to Robert Cox’s famous distinction between problem-solving theory that ‘takes the world as it finds it’ and which is largely preservative of the status quo, and critical theory, which points to possible alternative orders.⁸ To better maintain balance and perspective, I argue for the adoption of an ‘integrated’ approach to transitional justice critique that pushes thinking beyond the status quo, but with a greater eye to questions of feasibility and implementation by combining critical theory with what I call ‘critically motivated problem-solving theory.’ An integrated approach to critique embraces ‘as well as’ rather than ‘either/or’ explanations, emphasizing the ways in which transitional justice simultaneously preserves and challenges the status quo, is both neocolonial and emancipatory, and so on.⁹ An integrated approach does not necessarily require the rejection of critical theory aspirations for broader and more holistic approaches to justice-building. However, it does suggest that the holism advocated by critics must become an entry point into the hard ‘real world’ choices and tradeoffs involved in expanding the field and not a means of eliding them.¹⁰ In this way, the goal is to generate critical insights that are more policy relevant, empirically informed, and engaged with the question of how to proceed with the necessary changemaking, drawing theory and praxis together.

This article proceeds in four additional sections. First, I briefly outline the aspirations and limitations of critical theory, drawing primarily upon the work of Cox. Second, I survey and analyze mounting critical appraisals of transitional justice, outlining the continuum of reimagined transitional justice possibilities they help to bring into vision. Third, I develop my concept of an integrated approach to transitional justice critique, using the question of the embrace of structural violence as a case study. The final section concludes the article.

CRITICAL THEORY AND SOCIAL CHANGE

The overarching task of theory, according to Cox, is nothing less than to ‘enable the mind to come to grips with the reality it confronts.’¹¹ While such is arguably the aim of all scientific endeavor, ‘theory’ here should be understood not in the more traditional, positivist and empiricist scientific sense, but as a highly normative method of analysis and reasoning that never denies its own subjectivity. Theories arise, Cox notes, not out of a neutral and objective awareness of reality, but from historically conditioned, subjective perspectives.¹² The theorist cannot therefore speak as if there is a privileged vantage point from which to examine reality ‘from the outside.’¹³ While sophisticated theory attempts to transcend its own conditioning and perspective through self-awareness, perspective always remains.¹⁴ For Cox then, no theory is ever fully objective or value free, and any such claim must be examined to reveal a concealed ideological perspective. As he famously observed, ‘theory is always for someone and for some purpose.’¹⁵

One purpose of theory, Cox argues, is to help solve problems from within a particular perspective. Such problem-solving theory ‘takes the world as it finds it,’ attempting more to make existing institutions and frameworks work smoothly and efficiently than to ask how a particular paradigm came about, or to point to fundamental alternatives.¹⁶ Because it either accepts or fails to notice its own circumscription within the prevailing order, problem-solving theory is an inherently conservative, status quo enterprise, tending implicitly to serve the interests of those comfortable with a given order.¹⁷ Cox contrasts problem-solving theory with critical theory, an approach that questions the limited parameters of problem-solving theory and seeks to foreground the possibility of social and political orders other than the prevailing one. Importantly, however, Cox attempts to distance critical theory from charges of naiveté, arguing that its aims are ‘as practical as those of problem-solving theory,’ but that questions of practice and strategy are themselves also approached from outside of the mainstream of the existing order.¹⁸ Moreover, Cox argues, critical theory is to constrain its potential for utopianism by rejecting unlikely alternatives, focusing instead on possibilities that ‘are feasible transformations of the existing world’ as informed by ‘comprehension of historical processes.’¹⁹ In this way, Cox’s famous binary seeks to disturb simple notions of pragmatism and utopianism by suggesting that appeals to seemingly sensible incrementalism can obfuscate a conservative, status quo agenda, even as critical theory that might be dismissed by some as utopian can be fundamentally practical upon more careful consideration.

At its best, Cox therefore argues that critical theory can be ‘a guide to strategic action for bringing about an alternative order.’²⁰ But how exactly? What is the theory of change of Coxian critical theory? Cox does not elaborate on this point other than to note that periods of great uncertainty in power relations might create more openings to disruption than periods of stability.²¹ In the remainder of this section, I briefly examine two other critical studies traditions – the Frankfurt School and the Critical Legal Studies (CLS) movement – both of which were similarly characterized by an ambition to facilitate social change. For reasons of space, I cannot hope to do justice to either of these nuanced and heterogeneous traditions. They are examined here solely in an attempt to elucidate potential linkages between critical theory and the promotion of ‘alternative orders.’

Max Horkheimer (and other members of the Frankfurt School more generally) championed a methodology – immanent critique – that focuses on illustrating the gaps between the ideas and values espoused by a society, on the one hand, and the reality of experience, on the other – using the very values of the society in question to expose ‘contradictions.’²² More than simply understanding social dynamics in a purely academic way, the explicit goal of Horkheimer’s critical theory was social change, and the Frankfurt School was characterized by an overt normative commitment to free humanity from enslaving conditions.²³ The assumption, however, appears to be that seeing contradictions is inherently freeing and that changes in practice and society necessarily follow from changes in consciousness. The goal of the critical theorist is therefore not so much to persuade with programmatic alternatives or by delving into concrete tactics and strategies for change as it is to attempt to liberate with what David Kennedy has called a ‘methodological karate chop.’²⁴ In effect, the goal is to ‘red pill’ the subjects in question and assume that change will follow.²⁵ In this way, the Frankfurt School sought to elide the distinction between theory and practice ‘by projecting it into the heads of social agents as the difference between true and false consciousness.’²⁶ Because it appears to ‘imagine a world in which people are oppressed because of a consciousness which they would not hold if it were revealed to them,’²⁷ this conceptualization of critical theory assigns the critical theorist a rather heroic (if potentially condescending) role as catalyst to enlightenment. It also bears a curious resemblance to the ‘revealing is healing’ premise of many truth commissions,²⁸ to say nothing of the ways it echoes various religious traditions (‘the truth shall make you free’).²⁹ In this way, critical theory becomes a meaning-making project for the critical theorist, an imagined vehicle for peering deeply into the nature of reality.

Some decades after the mid-century heyday of the Frankfurt School, members of the CLS movement also imagined an important role for critical theorists in fomenting social change, with David Trubek declaring that ‘legal scholarship can be a kind of transformative political action.’³⁰ Like the Frankfurt School, the CLS movement’s theory of social change, though far from homogenous, appeared to be largely philosophically idealistic, meaning that explanations of and changes to social reality were sought in the realm of thought or consciousness rather than in material forces or concrete actions.³¹ In other words, ‘changing the world requires primarily that we begin to think about it differently.’³²

There is a sense in which the philosophical idealism of the Frankfurt School and the CLS movement is naïve, assigning an outsized role to reason and intellect. After all, if ideologies run deep, so too do material interests, and the powerful are not so because they give up power easily. Even so, there is little question that as part of the software to the wetware of our brains, narratives and ideas matter, allowing for the cooperation necessary to sustain global projects.³³ Evolutions in practice are part of an iterative process arising at least in part out of our shared mental maps, default rules and imagined realities. Students of critical theorists often go on to become practitioners, constituting an important vector of influence within that iterative process. It is also true that critical theory constructs can and do work their way into the culture in powerful ways, as the popular use of terms like ‘intersectionality’ and ‘microaggression’ illustrate. In the realm of transitional justice, the transmission of ideas from the academy to practice may be especially significant given the frequent migration of ‘pracademics’ between the two worlds.

Like other critical studies traditions, the CLS movement was widely assailed for emphasizing critique and deconstruction while providing comparatively little in the way of concrete, programmatic alternatives.³⁴ Although there are exceptions, including Roberto Unger’s articulation of a constructive political program and Duncan Kennedy’s detailed work on housing law and policy, others associated with the CLS movement were emphatic that being pushed to articulate an alternative paradigm is itself part of the problem, with ‘dissent silencing effects’ that serve to stymie the critical imagination.³⁵ Echoing this sentiment, some critical peacebuilding scholars have declined to suggest prescriptions and policies on the grounds that to do so would be to mirror the very ‘prescriptive biases of the liberal peace’ that they are critiquing.³⁶ Following this logic, CLS scholar Michael Fischl suggests that it is sufficient for scholarship to be ‘relentlessly critical,’ cultivating greater self-awareness in pursuit of ‘liberalism’s contradictions.’³⁷

When assessed against this backdrop, Cox’s argument that a ‘principle objective’ of critical theory is to ‘clarify [the] range of possible alternatives’ and that it ‘must reject improbable alternatives’ if it is to serve as ‘a guide to strategic action for bringing about an alternative order’ represents an important if contested position within the larger constellation of critical studies traditions.³⁸ It is no doubt correct that the intellectual understanding that relentless critique can help cultivate is preferable to error.³⁹ It is also true that knowing that something is broken is not the same thing as knowing how to fix it. Even so, while it can deliver important insights, ‘relentless critique’ alone will often prove insufficient to create a bridge between understanding and actual change in the world. And deconstruction with no seeming possibility of reconstruction can lead to a loss of the hope needed to sustain the struggle for social change.⁴⁰ Thus, critique stands a better chance of becoming emancipatory when the identification of contradictions between claim and context points to ‘the determinate possibilities for overcoming the contradiction.’⁴¹

An open question for critical theorists of transitional justice is therefore whether they will hew to the relentless-critique model espoused by some scholars, or perhaps find new and innovative ways to build bridges between theory, practice and social change, making good on the important if vague promise of Coxian critical theory. As I argue later, an integrated approach that brings problem-solving and critical theory into sustained and close conversation will likely prove useful in this regard, while at the same time helping to fill in some of the gaps in Cox’s theory.

THE CRITICAL TURN IN TRANSITIONAL JUSTICE

Transitional justice is a relatively young and interdisciplinary area of practice and study, emerging as a distinct field only around the turn of the millennium.⁴² Despite its youth, the field has since the 1980s gone from the exception to the norm. What began as a largely domestic effort in Latin America has since become a global phenomenon, embraced by the UN and international donors as an important component of peacebuilding not just in the context of regime change from authoritarianism to democracy, but in the postconflict context more generally.⁴³ Today, implementation of some kind of transitional justice is increasingly seen as a default expectation in the aftermath of war and mass atrocity.⁴⁴ As both a partial consequence and driver of this growth, the field has been internationalized and professionalized, with seasoned transitional justice scholars and experts routinely navigating between the academy, nongovernmental organizations and international organizations.⁴⁵

With notable exceptions, the early transitional justice literature was largely policy oriented, lacking deep empirical and theoretical currents.⁴⁶ Debates of the 1980s and 1990s were more likely to focus on the sequencing of transitional justice, the appropriateness of amnesties (peace versus justice) and the choice as among different transitional justice modalities (e.g. truth versus justice) than on the blindspots and ideology of the transitional justice enterprise itself. There was a deep-seated assumption that transitional justice was inherently ‘good,’⁴⁷ rather than a political and ideological project that might occasionally be ‘part of the problem.’⁴⁸ However, particularly as the field has been internationalized and institutionalized, there has been a significant growth in academic critique of historically dominant thinking and practice, and a greater willingness to question the nature and suitability of the traditional transitional justice model to the varied challenges facing postconflict societies.⁴⁹ Critique has also arisen in part out of the gradual accrual of transitional justice experience in many countries and a sense that the mainstream paradigm has too often yielded disappointing results when measured against our ideals of justice.

To be clear, this growing body of critique is far from monolithic, and the critiques vary greatly in terms of their sophistication and nuance, drawing upon a diverse body of critical studies traditions, including critical legal studies, critical race theory, feminist critical theories, indigenous studies, Marxist theory, postcolonial theory, third-world approaches to international law, and so on. Such traditions are contested from both within and without. Even with that significant caveat, it is possible to discern broad sets of common patterns and concerns within the burgeoning critical literature on transitional justice, and at least two overlapping constellations of critique have emerged.

The first constellation relates to the power dynamics of transitional justice ideology and practice. Typical concerns here relate to the relationship between the modalities of paradigmatic transitional justice and nonwestern, local or indigenous traditions of justice;⁵⁰ the processes and locus of agency associated with paradigmatic transitional justice (e.g. top down versus bottom up; locally owned versus imposed from ‘the outside’);⁵¹ and the technocratic idiom of paradigmatic transitional justice, which tends to depoliticize and obfuscate highly contestable choices, while shifting the balance of power in favor of international preferences.⁵²

A second constellation of critical concerns relates to the relatively narrow justice horizon of paradigmatic transitional justice as contrasted with the broader horizon of social justice. Typical concerns here relate to whether transitional justice does too little to disturb the postconflict status quo, treating symptoms rather than causes, and whether more should be done to address additional forms of violence beyond the narrow (if egregious) band of violations of international human rights and humanitarian law with which paradigmatic transitional justice has been most preoccupied. Thus, critics have argued that the scope of transitional justice should be expanded to address economic violence, structural violence, cultural violence, everyday violence and a broader array of gender-based harms.⁵³ A common thread underlying both constellations of critique is a concern that paradigmatic transitional justice is circumscribed by a liberal-legalist ideology and teleology while imagining that it represents a neutral framing of both problems and solutions,⁵⁴ and that this ideology is being exported from core to periphery in ways akin to neoimperialism.⁵⁵

Drawing these two constellations of critique together, some have advocated for a paradigm shift from transitional justice to ‘transformative justice,’ an ambitious vision brought to prominence by Wendy Lambourne,⁵⁶ and subsequently built upon by a number of scholars. As articulated by Paul Gready and Simon Robins, a transformative justice approach is one that takes a long-term view, and which foregrounds holistic social justice (addressing physical, structural and everyday violence), local agency and participation, and the social and political rather than the legal dimensions of social change.⁵⁷ Lambourne and Vivianna Rodriguez Carreon have further highlighted the need for transformative justice to include a robust ‘gender transformative approach’ that is attentive to the need to address psychosocial, socioeconomic and political power relations that hinder the realization of human rights for women and the prospects for sustainable peace.⁵⁸ Taken together, the transformative justice vision tends to emphasize process over outcomes, and places a great deal of faith in the ability of bottom-up, participatory processes to generate holistic and progressive social justice ends.⁵⁹ In contrast with paradigmatic transitional justice, it is also very much a ‘root causes’ approach, seeking to address deep-seated drivers of conflict such as structural violence.

Other critics have proposed a reimagined transitional justice, but one that is slightly less ambitious than the transformative vision. In my own previous work, for example, I have advocated for expanding the scope of transitional justice to include what I call ‘economic violence,’ including violations of economic and social rights and crimes of corruption, but have not gone so far as to include structural and everyday violence. In contrast with the transformative vision, I have expressed less discomfort with the liberalism and legalism of transitional justice and use a concept called ‘liberal localism’ in an attempt to strike a better balance between state-led and community-driven modalities, western and ‘traditional’ approaches to justice, and legal and political frameworks for changemaking – all depending on the constraints and opportunities of the context in question.⁶⁰ This more moderate approach might be called ‘social democratic’ transitional justice in contrast with the comparative minimalism and neoliberalism of paradigmatic transitional justice, on the one hand, and the heroic ambition of transformative transitional justice, on the other.

Taking these and other critical approaches together, it becomes possible to distill a common vision of a renewed transitional justice that is bottom-up, locally owned, victim-centered, contextually tailored, politically and culturally grounded in ways that foreground an array of options, oriented towards root causes and a broad array of structures of power and domination, and better coordinated with development and peacebuilding work. At a certain level, this vision of a reimagined or reformed transitional justice may seem fairly anodyne. After all, many dimensions of the critical vision (participatory, context-sensitive approaches, and so on) have almost become clichés of transitional justice and peacebuilding literature, and most of them were encapsulated and endorsed in a Guidance Note on the UN approach to transitional justice written a decade ago.⁶¹ In this sense, the critical vision of transitional justice literature is far from revolutionary. As Hannah Franzki and Maria Olarte have hypothesized, a truly revolutionary approach to transitional justice might go beyond even the social democratic and transformative visions to include large-scale redistribution of wealth, the democratic control of the economy, and people’s courts that pursue both direct perpetrators and indirect beneficiaries of the previous regime, including bystanders.⁶² However, while useful for purposes of contrast, such an approach does not currently draw support from transitional justice scholars and practitioners.

Nevertheless, whether or not truly radical, there are tendencies within the critical turn that have been deemed ‘hypercritical,’ sparking a critique of the critique. Kazuo Ohgushi, for example, points to the occasional tendency in the literature to paint with an overly broad brush in ascribing the faults of mainstream transitional justice to a hegemonic, monolithic, neoliberal, legalistic and neocolonial West.⁶³ One might add that some of the frequently deployed tropes of the critical literature are at times pitched at a level of generality that tends to elide the almost impossibly complex dilemmas of realizing these ideals in practice, making an assessment of the tradeoffs and hard questions that would inevitably be involved challenging. Thus, even as one highly sympathetic to the critical vision, I believe that ‘devil’s advocate’ type questions are both useful and necessary at this stage. Why, for example, is community-level participation and empowerment necessarily and inherently ‘transformative,’ as some critical scholars suggest?⁶⁴ While such approaches are no doubt important to successful social change in many contexts, under what conditions might they fail or even backfire? Might not the role of elites and state-level institutions remain critical to the success of transformative initiatives as well? Along similar lines, one can reasonably ask why ‘political’ approaches to transitional justice are necessarily and inherently more ‘transformative’ than ‘legal’ approaches, as the critical literature suggests. Surely both ‘legal’ and ‘political’ approaches come with different tradeoffs that need to be assessed, and yet the critical literature rarely does so.⁶⁵ Finally, there are also serious questions I turn to in the next section about whether the gap between the narrow horizon of transitional justice and the broader horizon of social justice can be closed to the degree some critical theorists would hope. These and other questions about the details of the critical vision point to the need for an integrated approach to transitional justice critique.

TOWARDS AN INTEGRATED APPROACH TO TRANSITIONAL JUSTICE CRITIQUE

Consonant with Cox’s conceptualization of the purpose of critical theory, the constellations of critique outlined in the previous section raise important questions about the limited parameters of paradigmatic transitional justice and seek to foreground the possibility of alternative approaches that, critics argue, would do more to challenge the postconflict status quo. These approaches can be illustrated as a continuum of transitional justice possibilities, as represented in Table 1. The continuum runs from thinner and shorter-term projects focused on comparatively gross and crude forms of violence such as murder and torture, to thicker and longer-term projects that also engage with comparatively subtle forms of violence such as cultural and structural violence. To be clear, the goal here is to illustrate but a few points along a spectrum of possibilities as a heuristic aid to facilitate discussion about alternative transitional justice futures. I am not attempting to suggest that the rich diversity of feminist, postcolonial and other voices, critical or otherwise, can be neatly subsumed into the categories presented here, or that there are not additional important categories to consider.

Table 1.

Continuum of transitional justice possibilities

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Insofar as critical theory has thus far helped to envision the hypothetical choices illustrated in Table 1, this itself is a valuable contribution. As Cox has noted, one task of critical theory is to reaffirm the possibility of alternative normative choices, and in so doing highlight the impermanency of the established order.⁶⁷ However, to avoid utopianism, Coxian critical theory also requires us to ask whether alternative models represent ‘feasible transformations of the existing world,’ while ‘rejecting improbable alternatives.’⁶⁸ In the context of a reimagined transitional justice, this raises a number of interesting and overlapping questions.

The Existing World

First, what exactly is the ‘existing world’ that is to be transformed? Is the ‘world’ in question the world of transitional justice thinking, policy, institutions and practice? Or, does ‘world’ refer to the deeper and dysfunctional prevailing social and power relationships that lead to the need for some kind of transitional justice in the first place? Cox is not entirely clear on this point, and uses language that could support both interpretations. On the one hand, it is no small thing to change the thinking of an epistemic community, and such communities do not, after all, exist outside of the ‘existing world.’ On the other hand, changes to transitional justice as a field of practice and study which do not make a meaningful difference in terms of social and power relationships outside of the field are likely to be seen as irrelevant by those who have to live with the long-term success or failure of transitional justice, and are unlikely to bolster the field’s legitimacy in the long run.

Closely related to the first question, one can also ask whether those who do not advocate significant change to the transitional justice field, but perhaps only its gradual reform and improvement, should be regarded as engaging ‘only’ in problem-solving theory. That is, by not seeking a deep paradigm shift in the field, is one therefore blithely taking the world as one finds it? This is a particularly sensitive question for fields such as human rights and transitional justice. As a matter of core identity, the communities associated with both fields have tended to imagine themselves as challenging rather than serving power. There is a fair argument that even the less ‘progressive’ aims of both fields – the implementation of basic civil and political rights and the fight against impunity for mass rape, murder and torture – are in fact still radical propositions that stand to challenge prevailing social and power relationships in many parts of the world. Thus, one could argue that to seek to improve transitional justice thinking, policy and practice while at the same time resisting the inclusion of economic or structural violence (for example) is not necessarily to make oneself a stooge of the status quo.⁶⁹ On the other hand, some critics have argued that even those who have taken a seemingly progressive stance in pushing for the inclusion of economic issues within a reimagined transitional justice have unwittingly only brought such issues to the fore in ‘already-colonized form.’⁷⁰ It would therefore seem that each person’s challenge to a dominant paradigm is another person’s service to the status quo. This suggests that without more grounding in questions of feasibility, there is a danger of escalating and utopian critical one-upmanship in which critics compete to see who can go deeper, be more holistic, more progressive, address ever more subtle forms of violence, and so on.

As these questions begin to illustrate, Cox’s critical theory/problem-solving binary, while rarely questioned, is too sharply delineated.⁷¹ It remains useful in identifying broad tendencies in the literature, but is unable to accommodate much in the way of subtlety or complexity. With a view to refining and building upon Cox’s theory, a more useful construct for helping to understand relative positions in contemporary transitional justice debates is that of a continuum of critique in which status quo preserving theory lies at one pole and more disruptive theory at the other end, as illustrated in Figure 1. Under this model, while critiques geared towards improving paradigmatic transitional justice might be less potentially disruptive to the status quo (both within and beyond the field) than critiques keyed to social democratic, transformative, revolutionary or other potential forms of transitional justice that do not figure in my simplified heuristic, that does not necessarily make one of them pure problem-solving and the other pure critical theory as if some kind of on–off switch were involved. In the same way, both human rights and transitional justice are complex fields of inquiry and activity, tending to contain both emancipatory and status quo preserving dimensions at each stage of their development. I therefore deliberately employ the more general word ‘critique’ to get away from questions of who is or is not doing ‘real’ critical theory. In general, most contemporary transitional justice literature engages in some form of problematizing and critique in ways that do not neatly correspond to Cox’s framework. Moving in the direction of ‘as well as’ rather than ‘either/or’ explanations, and of continuums rather than binaries, would likely help to capture some of this complex reality. Thus, one of the goals of Figure 1 is to avoid the impression that critical and other voices can be easily subsumed into one of two categories. This is consistent with the impulse underlying Cox’s binary, which was to refuse to take simple notions of pragmatism and utopianism, of problem-solving and critical theory, at face value.

Assessing Feasibility and Improbability

The next question raised by Cox’s argument that critical theory must limit the range of choices to ‘alternative orders which are feasible transformations of the existing world’ is how we assess feasibility, or on what basis we are to ‘reject improbable alternatives.’⁷² More specifically, referring back to the continuum of transitional justice possibilities (Table 1), the question is whether any of the outlined alternatives can rightly be rejected as ‘improbable’ or ‘infeasible.’ The short if unsatisfying answer is that much depends on the particularities of context, including the legal, political, economic and cultural dynamics with which a particular approach to transitional justice might be expected to engage (and of which it is a part). In assessing whether a thinner or thicker approach to transitional justice is possible or probable, and whether that approach is likely to have much of a chance of disrupting the postconflict status quo, one would need to look at a range of context-specific factors, including: the nature of existing elites and their resistance to change; whether there is a history of democracy and strong institutions; the level of economic development and the nature of the economy; the nature of the victims of conflict, their perpetrators and the abuses that were suffered; and the strength of victim and civil society networks.

Thus, for example, even if critical theorists are correct that the ‘constructed invisibility’ of the economic within paradigmatic transitional justice is a matter of deep-seated neoliberal ideology,⁷³ the question of whether and to what extent an embrace of economic justice is possible will still require careful analysis of these and other contextual factors. Such factors may in turn suggest the feasibility of a comparatively broad approach to economic justice involving fundamental questions of redistribution, or perhaps only a narrow approach to economic justice involving the selective prosecution of economic crimes of corruption and violations of economic and social rights that rise to the level of a war crime.⁷⁴ For this reason, abstract debates about the value of paradigmatic transitional justice versus one of the other possibilities outlined in Table 1 are unlikely to advance the discussion at this stage. To move forward, the current critical theory debates need to do more to engage with the difficult tradeoffs, policy choices and contextual realities that would inevitably be associated with efforts to implement an alternative vision of transitional justice.

Once again, this suggests that too sharp a delineation between critical and problem-solving theory is unhelpful. After all, how can feasibility be determined – how can ‘improbable alternatives’ be rejected – without engaging with some of the nitty-gritty questions associated with the potential implementation and implications of a particular critical vision?⁷⁵ Cox himself explains that ‘critical theory contains problem-solving theories within itself,’ but curiously notes that this is only to ‘contain’ and point to the ‘conservative consequences’ inherent in problem-solving theories – and not because of any usefulness they might have ‘as guides to action.’⁷⁶ In this way, Cox does not offer much of a bridge between critical and problem-solving theory. Perhaps it would have been difficult for him to do otherwise insofar as problem-solving theory has been defined as inherently status quo preserving. Irrespective of the label applied, however, it would seem that if critical theory is to constrain its potential utopianism, as Cox argues it must, then an analysis of tactical and strategic policy questions associated with ‘real world’ implementation – and at higher level of detail than is typical of most critical studies literature – is required. This could be thought of as ‘critically motivated problem-solving.’ Unlike Cox’s problem-solving theory, critically motivated problem-solving makes no pretension to being ‘value free.’⁷⁷ And unlike most critical theory, critically motivated problem-solving is keyed to understanding ‘the how’ of bringing about the potential alternative orders for which critical theory has provided a very rough sketch. In other words, it sweats some of the small stuff that critical theory famously ignores. Critically motivated problem-solving theory can be modeled as a spiral that corkscrews around the continuum of critique represented in Figure 1, helping to push things in one direction or another. Critical theory and critically motivated problem-solving theory then come together in sustained and close conversation as integrated critique (Figure 2).

As an example of the questions this model helps to draw out, I briefly consider here the critical vision for a kind of transformative justice that seeks to address structural violence. As articulated by Johan Galtung, structural violence helps to explain the difference between human beings’ actual and potential realization, and includes social structures that harm people and keep them from meeting basic needs through, for example, institutionalized racism or sexism.⁷⁸ Galtung contrasted structural violence with what he called ‘direct violence,’ which would include (but remains broader than) the egregious violations of bodily integrity that have been central to paradigmatic transitional justice.⁷⁹ Unlike direct violence, Galtung’s structural violence is not ‘personal,’ ‘direct’ and ‘intentional.’⁸⁰ In this sense, it is also different from what I have called ‘economic violence’ because acts of corruption and plunder of natural resources are ‘direct’ and ‘intentional’ acts of harm more akin to Galtung’s direct than structural violence.⁸¹ Without the level of individual and collective agency associated with direct violence, many struggle to understand the impersonal, unintended consequences of an ill-defined ‘system’ as a form of violence at all, and indeed structural violence is often normalized and legitimized to the point of near-invisibility by what Galtung called ‘cultural violence.’⁸²

The argument arising out of critical theory is that the question of structural violence has been a longstanding blindspot within paradigmatic transitional justice due to its neoliberal and legalistic blinders, and must be addressed as one of the root causes of conflict under the banner of transformation.⁸³ There is little doubt that given the deeply embedded and intertwined nature of many forms of violence, a holistic transitional justice paradigm that addresses both gross and subtle forms of violence, including structural violence, is appealing. And yet, following Coxian theory, we must ask whether such an alternative paradigm should be rejected as ‘improbable.’⁸⁴ If we assume for purposes of argument that key constituencies within a particular country all agree that structural violence is a problem and that addressing it should be part and parcel of the transitional justice process in that country, we still need to use critically motivated problem-solving to try to understand what this might look like in practice, and whether it might make a meaningful difference when it comes to disrupting postconflict power dynamics.

It is not that the onus is on the critical theorist at this stage to develop a detailed blueprint or plan of action. However, even a loose exploration of how mechanisms such as tribunals, truth commissions, vetting and reparations programs, and so on might go about attempting to address a form of violence that is impersonal, indirect and unintentional would go a long way in helping to assess whether this form of transitional justice should be rejected as an improbable or infeasible alternative in a particular context. Thus far, the critical literature either has largely failed to do this, or has concluded that meaningful reduction of structural violence would require a level of institutional reform and redistribution of wealth and power that the traditional staples of transitional justice are unlikely to deliver.⁸⁵ This may therefore point to the need for alternative changemaking initiatives well outside of the mainstream transitional justice ‘toolbox’ to address structural violence. Indeed, it has been suggested that perhaps transformative justice might better be seen as a field unto itself and not simply as a thicker version of transitional justice,⁸⁶ ‘go[ing] beyond’⁸⁷ the transitional justice framework through ‘longer term and less individualized tools.’⁸⁸

Nevertheless, whether transformative justice is conceptualized as part and parcel of the transitional justice continuum (Table 1) or rather as its own field of concern and action that picks up where paradigmatic transitional justice leaves off, hard questions of feasibility and operationalization remain. To these ends, Dáire McGill has helpfully outlined questions that could be used to assess whether alternative initiatives and approaches impact structural violence in a meaningful way, but offers little in terms of operational detail beyond the general need for bottom-up, participatory processes and context sensitivity.⁸⁹ Once the injunction to ‘add participation and stir’ has been heeded, it remains unclear how or whether such unspecified alternative initiatives might have a better chance of overcoming the barriers to institutional reform and redistribution of wealth and power than paradigmatic transitional justice (and indeed compared to more general development, poverty-alleviation and empowerment programs as well). Without more detailed analysis, it is difficult to determine whether this or another transitional justice paradigm – be it paradigmatic, social democratic, revolutionary or something else – would be more feasible, more likely to successfully disturb the status quo. If one paradigm seems improbable, perhaps a narrower one might prove less so for a particular context. Ultimately, however, it is the task of Coxian critical theory to help clarify the range of feasible alternatives, and not to advocate for an ideal likely to generate more disillusion than hope due to its unworkability in a particular context.

To be clear, an integrated approach to transitional justice critique does not necessarily require the rejection of critical theory aspirations for broader and more holistic approaches to justice-building. It is not, as Lars Waldorf suggests, that the social democratic and transformative paradigms must be rejected out of hand because transitional justice is inherently ‘short term, legalistic, and corrective.’⁹⁰ That argument is far too categorical, and not based on the limitations of a particular context. Even so, the critical theory appeal to holism must not become a means of avoiding hard choices, as Waldorf has warned,⁹¹ but an entry point into the hard ‘real world’ choices, tradeoffs and policy details that would inevitably be involved in expanding the field to address additional forms of violence. For example, in my work on economic violence, I have attempted to deconstruct the underlying political and ideological assumptions that have led to the marginalization of violations of economic and social rights, corruption and other financial crimes, and plunder of natural resources within paradigmatic transitional justice.⁹² At the same time, I have also wrestled with hard choices relating to how questions of economic violence might be meaningfully and concretely operationalized by tribunals, truth commissions and reparations programs, sketching out a spectrum of hypothetical policy options ranging from broad to narrow that might be adopted depending on the particular constraints and opportunities of the context in question.⁹³

As this example suggests, the goal of integrated critique is to generate critical insights that are more policy relevant, contextually informed and engaged with the question of how to proceed with the necessary changemaking than has often been the case in the past. Integrated critique therefore sits at the fold between the potential conservatism of incremental pragmatism and the potential utopianism of critical theory. It is a precarious position subject to being assailed by some for implicitly serving the status quo by unwittingly replicating technocratic approaches, and by others for being insufficiently detailed and realistic. Integrated critique may seem less radical than some critical theory, and yet it contains its own element of radicalism arising out of an impatience with the speed at which relentless critique alone is likely to change the world.

The Question of Transformation

A final question raised by the need for Coxian critical theory to limit ‘the range of choice to alternative orders which are feasible transformations of the existing world’ is just what should count as a ‘transformation.’⁹⁴ In other words, what would ‘success’ look like? As critics, what would or should satisfy us? While Cox’s use of the word ‘transformation’ suggests a highly ambitious critical theory, this ambition is moderated somewhat by his inclusion of feasibility, suggesting the need for a more balanced and less utopian vision of the possibilities for changemaking. Without such a balance, there is a danger that the critical turn in scholarship will raise the bar for success so high that transitional justice of any variety will be almost guaranteed to disappoint. Vasuki Nesiah, for example, argues that there is a ‘crisis of legitimacy and effectiveness’ in transitional justice due to ‘the failure to open up the hierarchies of power to accountability’ and because transitional justice processes have too often ‘left the structures of impunity intact.’⁹⁵ Without doubt, a transitional justice paradigm that left no structures of impunity intact would qualify as a significant transformation of social and political order. The problem, however, is that in all likelihood there will always be hierarchies of power and structures of domination left intact even following a robust, progressive and longer-term approach to transitional justice. This is especially true if one takes into account more subtle forms of violence such as structural violence, whose minimization – one cannot speak of elimination even in comparatively peaceful consolidated democracies – is the work of generations. While unintentional, there is therefore a risk that the more critical voices emphasize a matrix of power and domination left untouched by transitional justice, the less legitimate the enterprise may appear. In finding transitional justice wanting, some may come to see it as worthless. This points to the need for humility and expectations management on the part of critical theorists.

To be clear, what Colleen Murphy has called ‘societal transformation’ is indeed a normatively desirable, exciting and ambitious goal for transitional justice that may well serve as a prism for generating new and creative practice in the future.⁹⁶ It seems inevitable that transitional justice will be judged in part based on a comparison between the pre- and postconflict status quo, including the level of societal transformation that has taken place. And a transitional justice project that does not at least highlight and contest the roots and drivers of conflict risks rendering the refrain ‘never again’ somewhat hollow. At the same time, it is important to recognize that in many contexts transitional justice is but a tail on a much larger peacebuilding and development dog.⁹⁷ Its positive impacts have proven to be modest, but worthwhile.⁹⁸ The more general and multifaceted limitations in the postconflict context that so often contribute to the production of incremental rather than revolutionary change will make no exceptions for transitional justice, whether paradigmatic, social democratic, transformative or otherwise. As Padraig McAuliffe has noted, if there is disappointment at the failure of transitional justice to transform, such disappointment would only be warranted where ‘pre-existing conditions, domestic political will and external support are such that genuine transformation is possible.’⁹⁹ Given the exquisite complexity involved, it is just too simple to attribute the inevitable persistence of some forms of violence, domination and inequality to a penchant for apolitical and technocratic engagement, insufficient participation, top-down approaches, and other critical studies boogeymen – even as these remain serious issues to grapple with.

For these and other reasons, Gready and Robins have prudently spoken of the need to unleash ‘transformative dynamics’ rather than focusing on literal transformation.¹⁰⁰ Along similar lines, I have argued that the concept of ‘progressive realization’ might be borrowed from the world of economic and social rights in order to assess not whether a transitional justice paradigm has firmly established positive peace, but whether efforts are steadily pushing things in the direction of positive peace.¹⁰¹ Finally, in attempting to maintain balance and perspective within critical theory, it will also be useful to keep Kathryn Sikkink’s injunction in mind: if human rights and transitional justice are found wanting in a particular context, we must always ask the question ‘compared to what?’¹⁰² While some might argue that this question has the potential to crimp the critical imagination and push us into mere status quo oriented problem-solving,¹⁰³ it is also true that if the compared-to-what question fails to point to a more auspicious and feasible paradigm, then this is a fact of which critical theory must take sober note.

CONCLUSION

The critical turn in transitional justice scholarship is an important and exciting development in the evolution of the field, and a sign of growing maturity. As certain norms and practices gain a toehold in the global policyscape, leading to an internationalized and institutionalized mainstream with its associated experts, it is important for critical voices to question the naturalness and inevitability of that mainstream. Thus far, critical transitional justice scholarship has pushed against the narrowness and blindspots of the dominant paradigm, helping to envision a broader and more holistic project of building peace with justice in the aftermath of repression and mass atrocity. One preliminary sign of the success of this work is an emerging rhetorical consensus – even within the mainstream – that new approaches are needed.¹⁰⁴ It is also noteworthy that there are comparatively few voices within the scholarly community marshaling a defense of paradigmatic transitional justice. This suggests an evolving mainstream, and it is worth asking whether some of the sharpest critiques in the literature may at times have more relevance to the past than the present moment.

Even so, it is too early to say whether the critical turn will in fact lead to evolutions in ‘real world’ practice that stand a better chance of challenging the social and political postconflict status quo than what came before. Thus far, too much of the emerging critical scholarship has been pitched at a level of generality bordering on sloganeering. I make few exceptions for my own critical scholarship in this regard. Moving these debates forward over a decade into the critical turn will require a higher degree of engagement with ‘the how’ of implementing the critical vision in ways that are true to that vision. After all, many critical theory ideals – such as participation and local ownership – have become ritualized mantras devoid of substance after adoption by large international institutions.¹⁰⁵ Perhaps the most radical thing of all at this stage would therefore be to figure out how to better translate critical theory ideals into actual practice without being stripped of substance in the process. To these ends, I have, building on Cox’s famous binary, proposed a model of integrated critique that draws together both critical theory and what I have called critically motivated problem-solving. The goal is to continue to push thinking beyond the status quo as the critical scholarship has largely successfully done, but with a greater eye to possibility and feasibility, tactics and strategy. Such a course correction should prove useful not only in bringing critical theory debates within the field into a second productive phase, but also in efforts to bridge the historic divide between critical theory, practice and changemaking.

Footnotes

*Dustin Sharp, Associate Professor, Kroc School of Peace Studies, University of San Diego, Email: dsharp@sandiego.edu