I believe that we are in a period of radical transformation in international law and this transformation – this paradigm shift – has direct impacts on what happens in countries around the world at the national level and particularly on matters of transformative and social justice. For hundreds of years, we have taken the idea of state sovereignty for granted. We have accepted it as an unalterable given, the irreducible minimum of any conversation about geopolitics, the possibility of human rights, and even the very meaning of justice. All of that is in the context of the fixed notion of state sovereignty – the gift of peace from a war long forgotten.
But at the end of World War Two, a new idea came into our way of thinking, and we are still – 70 years on – trying to understand its full implications. The idea is the recognition that what matters most – the only thing that all of our efforts at law, at peace, and justice are aimed at – is the flourishing of human dignity: the protection of human beings so that they can live in dignity.
The idea that dignity is important is not a radical solution in and of itself. The United Nations Charter and the Universal Declaration of Human Rights (UDHR) recognized it as the starting point of the new world order, “the foundation of freedom, justice and peace in the world.” Human dignity has thus been part of the vocabulary of international law for decades. But until recently, we (the human international community) haven’t fully appreciated its significance. The radical solution that I propose is that we simply take it seriously.
The remarks will explore this approach first by setting out the background of the aims of transitional and transformative justice, and then by associating these transitional moments with the aims of social justice, and finally by showing the work that a thick understanding of dignity can do to spur transformation toward social justice.
Understanding our terms
It may be helpful at the outset to describe the differences between transitional and transformative justice, particularly as these phenomena relate to social justice.
Transitional justice tends to be backward looking; we look at the past to lay the groundwork for a peaceful future. It focuses on the injustices of the past on the assumption that understanding the past is the best way to prevent their repetition. It can be punitive – whether criminal or administrative, it may involve penalties imposed on people for the harms they committed. These can include criminal trials and sentencing or administrative penalties or lustration which can involve prohibitions on electoral or employment rights. It can also be non-retributive and include restorative justice programs as when previously antagonistic communities join together in dialogue, remedial initiatives which can include reparations to victims and survivors, and the creation of memorial sites so that social, historical, and personal narratives can be retained and protected. Transitional justice works to lead, or push, the society from one status to another, from a condition of war to a condition of peace, or from heated conflict to subdued conflict. The mechanisms of transitional justice – TRCs, trials, memorials – can teach and educate and remind so that we never forget. They can, maybe, help people forgive and overcome. Primarily concerned with turning the page, closure.
But transitional justice does not ensure that losers won’t seek vengeance or that the victors won’t continue to oppress. It doesn’t have the tools to ensure that the book won't open again, that old wounds won't fester and start bleeding again.
So the notion of transformational justice may fill some of the gaps left open by the limitations of transitional justice.
Transformational justice addresses the deeper roots of the problems that gave rise to the conflict. Not satisfied with merely fixing the things that broke down but aiming to radically transforming the society from one that is defined by division and accepts violence to one that does not. Transformative justice requires looking forward, always keeping the endgame clearly in mind. If transitional justice is about closure, transformative justice may be said to be about the opening. It stands us with a Rawlsian veil of ignorance and asks what kind of society we want to live in.
A speech given by Chancellor Angela Merkel on the occasion of the 80th anniversary of Kristallnacht may help to illustrate the difference:
“There are two urgent questions that we need to answer,” she said. “First, what did we really learn from the Shoah, this rupture of civilization? And second to the first question: Are our democratic institutions sufficiently strong so that an increase of anti-Semitism, or even if a majority presents anti-Semitism, it can be prevented in the future?”
The first question is the question of transitional justice: what did we learn? How can we move on? Did we repair the rupture that took place? But the second question is the question of transformative justice: how do we rebuild our institutions, and transform our very society, to withstand tensions and hatred and the inclination to oppress “the other”, to prevent a recursion of violence, whether the next year, 10 years later, or 80 years later? What is the condition of our society today?
Which brings us to the question of social justice.
The need for social justice
I once heard a joke. A Serb and a Kosovar are in a café, eyeing each other skeptically, warily. Finally, the Kosovar speaks up: “Why are you fighting us? You are upset about a battle you lost 600 years ago. When will you stop killing us?” And the Serb says: “When we all have jobs.”
This illustrates the difference between merely transitional justice and profoundly transformative justice. Whereas transitional justice is associated with ending the fighting, transformative justice seeks to understand the underlying reasons for the fighting – why eruptions occur in communities that have coexisted somewhat peacefully sometimes for centuries. But that is not enough. What is necessary is social transformation because only social and economic justice will help prevent the recurrence of violence.
War, peace, nationalism, division, ruptures – it’s about social justice. It’s about jobs. It’s about the ability of people to live lives of dignity. It happened to be about Serbs and Kosovars, but it could be about anyone. In the end, people fight because fighting is sometimes the best alternative; it pays off. If we genuinely seek to end wars, we must provide better alternatives. Thatis the transformative challenge.
The vast, vast, vast majority of people around the world want exactly the same thing: the kind of society they want is one in which two basic conditions are met: they want peace, rather than violence and they want social justice in the sense that wealth, resources, and opportunities are distributed fairly and equally among all the people.
But why are these important? The fact that these two conditions are probably the irreducible minima for most people on earth tells us something about the human condition. First, it tells us that we believe that every person is entitled to something; there is not test, no barriers to entry. The entitlement is inherent in (as the UDHR says) “all members of the human family.” Second, it tells us what each person is entitled to: access to the resources and opportunities sufficient to secure well-being because every person is entitled to manage his or her own life. That is, each person has worth that must be respected and nourished. And third, that everyone is entitled to equal opportunities and to fair distribution of resources because every person’s worth is equal. No one is entitled to greater access and no one should have to suffer with less access. And no one can decide for any other person how those resources and opportunities will be distributed and used.
This is the essence of the idea of human dignity: the inherent and equal worth of all persons.
Dignity as the alpha and the omega
While this definition is not spelled out in the UDHR, it is suggested by the way dignity is used in that document.
It is a simple but profound idea. The UDHR protects the inviolability of human dignity, by recognizing it as the foundation for all human rights – indeed the very concept of human rights. It insists that people must be treated with dignity by powers public and private. And it reminds us that the purpose of this whole enterprise – of justice, whether transitional or transformative – is to enhance the ability of people around the world to live in dignity.
This understanding of dignity has spread out at the international level in other human rights instruments, including binding ones like the two International Covenants and other human rights conventions. Perhaps more importantly, it has spread to the national level as well, where dignity is now recognized in approximately 160 national constitutions, almost of all of which post-date the UDHR and many of which are lending themselves to interpretation and application by courts around the world.
So we know dignity to be important – to be perhaps the most important value for any society, any culture, to advance and protect. But the challenge is, of course, implementation: how do we put this commitment into action?
We might begin by trying to understand the different roles that the concept of dignity plays. It plays at least three roles that are particularly relevant to the transformative context.
The first role is explanatory. Reference to human dignity explains the reason why people are entitled to social justice. In the UDHR, it represents not the liberties that a government might grant to its people, but the rights that every person is entitled to just by virtue of having been born a member of the human family. Following this logic, Hannah Arendt wrote that once we are born in dignity, we have the right to claim these rights; we have as she wrote, “the right to have rights.” It is why we should be a member of a political community. This is the dignity of belonging.
Thus, the essential challenge of the transitional moment is to transform division into unity, to create a single nation (again, reinforcing sovereignty) to which all belong, despite their differences in other ways. Many countries – including Belgium and more recently South Africa – have sought to forge national identity out of diversity and difference.
The second role takes that idea one step further: we not only have a right to be a member of a political community, but the right to actively participate in that political community and to be treated with respect – as a person – in that community. This participatory form of dignity is the dignity of action, of engagement. At a micro level, it is simply the mandate that every person should be treated with dignity. Every person has a voice that should be heard, is entitled to a seat at the time, and should have the right to make decisions for him or herself, and not be the object of someone else’s decisions. We see this in transitional contexts as when, for example, victims of political crimes are invited to give their stories, to say their truths (in contrast, for instance, to the typical marginalization of victims in criminal courts). At a macro level, participatory dignity ensures that all people have the right to speak, to vote, to be consulted, to run for office, to associate with others, and to petition the government for the things that will further advance their dignity. This entails the transformative challenge of ensuring sufficient protected space for civil society.
Finally, the recognition of dignity plays a purposive role of social transformation. It explains the endgame of all transitional and transformative efforts: to promote the capacity of people to manage their own lives, to design the course of their lives, according to their own personal values and priorities. This may be the question of ensuring that “we all have jobs.” Or it may mean more. It may mean the full panoply of incidents of what in Latin America is called la vida digna.
Human dignity is the thread that ties together transformative and social justice. Transformational justice is the means of attaining social justice for the purpose of enhancing the capacity of people to live lives of dignity. It accepts the strictures of state sovereignty, but turns it on its head: instead of protecting sovereignty for the sake of the state, it protects it for the sake of the people. Transformative justice is the most creative form of justice. Its challenge is to imagine what the world would look like if we really committed to the idea of human dignity, and then to make it happen.
Erin Daly is Professor of Law at Widener University Delaware Law School and Co-Founder of the Dignity Rights Project. She has written extensively on transitional justice, dignity rights, and environmental constitutionalism. Erin Daly, Jeremy Sarkin, RECONCILIATION IN DIVIDED SOCIETIES FINDING COMMON GROUND, University Pennsylvania Press, 2008. Available at SSRN; Daly, Erin, Transformative Justice: Charting a Path to Reconciliation (2002). International Legal Perspectives, Vol. 12, 2002. Available at SSRN; Daly, Dignity Rights: Courts, Constitutions, and the Worth of the Human Person (Penn Press 2012).