State redress as transitional justice

“Transitional justice” is a relatively new field in legal and political theory, first appearing in the early 1990s. Its definition is still subject to controversy, as scholars have reached no consensus upon what a “transition” involves.

However, it is generally thought that transitional justice is those measures that redress the legacies of massive human rights abuses in the context of regime-change. These measures include criminal prosecutions, truth commissions, official apologies, and reparations programmes.

In his 2014 book Transitional Justice in Established Democracies, Dr Stephen Winter argues that “state redress” is a form of transitional justice. State redress is a state’s attempt, usually through acts and programmes, to rectify its past wrongs. Dr Winter focuses upon redress in established liberal democracies and argues that state redress helps legitimise current regimes by rectifying injustices that burden their legitimacy.

One example Dr Winter uses in his book is the 2003 apology and $41 million settlement with Ngati Ruani, a Taranaki-based iwi, for breaches of the Treaty of Waitangi and wrongful land confiscation in the 1860s.

Dr Winter argues that wrongdoing by the New Zealand state damages the legitimacy of the Crown vis-à-vis all New Zealand citizens. Remedying those injuries improved New Zealand’s position.

The New Zealand Society for Legal and Social Philosophy recently hosted a symposium at which Dr Winter presented, and Dr Glen Pettigrove and Dr Arie Rosen (of The University of Auckland’s Department of Philosophy and Law School respectively) offered their comments.

Dr Pettigrove understands Dr Winter’s view of state redress as relevant only if past wrongs were committed under a regime that can be considered the same entity as the current regime. As states can be reorganised, Dr Pettigrove fears that a principle based upon this view might “allow some states off the hook too easily”.

A more plausible view, he argues, would focus upon the length of time since the wrongdoings, and whether present-day identities are built around the history associated with the grievances caused by the wrongs. Dr Rosen pointed out that, although the cases discussed by Dr Winter largely relate to injustice committed by the state, there are significant examples of state institutions not being the main perpetrator of such injustices.

Among these examples, he argued, are wrongs against indigenous people in settler colonies. Dr Rosen questioned the appropriateness of state redress in such cases.

Dr Rosen also pointed out that past injustices only have an indirect effect upon contemporary legitimacy. This raises a problem with understanding state redress as a mechanism legitimising the new regime. It can send a positive signal, but state redress is not legitimising in itself.

Interestingly, Dr Rosen suggested that redress is a problem of societal injustice rather than institutional legitimacy. He therefore argued that state redress might have more to learn from the theory of global justice, which concerns the worldwide distribution of goods and burdens, than from transitional justice.

As Dr Rosen pointed out, the current global distribution of wealth and wellbeing between peoples is largely due to past and present exploitation of the poor by the rich.

Dr Winter’s view of state redress as a form of transitional justice is interesting, and so are its criticisms. It may allow some states to omit their responsibility to deal with their past wrongdoings, and we should also keep in mind that not only states can be held accountable for large-scale rights abuses of the past.

The New Zealand Society for Legal and Social Philosophy hosts regular meetings in both Auckland and Wellington. For details of its activities, please visit http://nzlsp.wordpress.com/.

Contact Us
Phone 09 303 5270
Fax 09 309 3726
Email reception@adls.org.nz