Religion & Transitional Justice

Colleen Murphy

Transitional justice refers to the process of dealing with human rights abuses com-
mitted during the course of ongoing conflict or repression, where such processes are
established as a society aims to move toward a better state, and where a constitu-
tive element of that better state includes democracy. A philosophical theory of tran-
sitional justice articulates what the moral criteria or standards are that processes
of transitional justice must satisfy to qualify as just responses to past wrongdoing.
This essay focuses on the roles of religion in transitional justice. I first consider the
multiple and conflicting roles of religion during periods of conflict and repression.
I then argue against conceptualizing transitional justice in a theologically grounded
manner that emphasizes the importance of forgiveness. Endlich, I discuss the prom-
inent role that religious actors often play in processes of transitional justice. I close
with the theoretical questions about authority and standing in transitional contexts
that warrant further examination, questions that the roles of religious actors high-
light. Thinking through the relationship between religion and democracy from the
perspective of transitional justice is theoretically fruitful because it sheds more light
on additional dimensions to the issue of authority than those scholars of liberal de-
mocracy have traditionally taken up.

T his essay considers the relationship between religion and democracy

through the lens of transitional justice, drawing on the case of South Africa.
Transitional justice broadly refers to the formal and informal processes of
dealing with past wrongs committed during the course of ongoing conflict and re-
pression. Such processes are established in the context of an attempted transition
away from protracted periods of conflict and/or repression and toward democra-
cy.1 There are many forms such transitional justice processes take, from criminal
Versuche, truth commissions, amnesty, and memorials, to reparations and programs
of lustration whereby individuals are barred from serving in specific public roles.
Transitional justice processes are defended as important for their own sake and,
insbesondere, insofar as they satisfy the rights of victims and moral demands on
perpetrators. They are also valued for instrumental reasons, especially their con-
tributions to democratization.

There is no neat or simple relationship that exists between religion and tran-
sitional justice, as the mixed roles of religion in conflict and repression in South

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Africa make clear. But how should we understand the “justice” of transitional jus-
tice? Das ist, on the basis of what moral criteria or standards should processes of
transitional justice be evaluated? As my discussion makes clear, one of the central
tasks of transitional justice processes is to help establish the authority of the state,
when state institutions are discredited. The prominent participation of religious
actors in processes of transitional justice generate novel questions about authori-
ty and point toward questions that warrant further theoretical investigation.

T ransitional justice processes have been established in dozens of societies

around the world over the past few decades. A few of the many contexts in
which processes of transitional justice have occurred include South Africa
during its transition away from apartheid to democracy, the countries that made
up the former Yugoslavia following the wars that accompanied its breakup, Und
Colombia today as it continues to implement the terms of a peace agreement aim-
ing to end more than fifty years of conflict between the Colombian government
and the Revolutionary Armed Forces of Colombia (commonly referred to by its
acronym FARC). The South African Truth and Reconciliation Commission (TRC)
established in 1994; the International Criminal Tribunal for the former Yugoslavia
(ICTY), which operated from 1993–2017; and the currently functioning Special Ju-
risdiction for Peace (JEP) in Colombia are some of the more prominent examples
of such processes.

Societies that call for transitional justice vary in many ways. Jedoch, at a cer-
tain level of abstraction, we can identify common features.2 I focus on three such
features and illustrate them using the case of apartheid South Africa. The first is
the existence of what I call pervasive structural inequality. Structural refers to the
general terms of interaction among citizens and between citizens and officials, als
laid out in institutionally defined rules and norms. Zum Beispiel, legal rules spec-
ify who is eligible to hold political office and the process through which political
office-holders are selected. Criminal law delimits conduct that is legally imper-
missible, setting minimal baselines for interaction among citizens. The institu-
tions that help to define the terms of interaction among citizens and between
citizens and officials are many, including legal, politisch, cultural, and economic
institutions. Such institutions define terms for interaction by specifying who is
permitted to, required to, or prohibited from acting in certain ways, and what the
formal and informal penalties for violating such terms are.

When institutionally defined terms for interaction are unequal, there exists dif-
ferential restrictions on opportunities for certain groups of citizens, constraining
what they can effectively do and become of value (such as being educated, Sein
employed, participating in government) and constraining their ability to shape
the institutional rules for interaction themselves. Pervasive structural inequality is
such that it calls into question the legitimacy of the institutional order; citizens

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Dädalus, das Journal der American Academy of Arts & SciencesReligion & Transitional Justice

have a right to rebel. Apartheid South Africa was a paradigmatic case of pervasive
structural inequality, where institutional rules and norms differentially and sys-
tematically constrained the opportunities of black South Africans and excluded
black South Africans from any effective role in defining the institutional order.3
Under apartheid, black South Africans were stripped of the right to vote, war
forcibly relocated according to government-designated racial categorizations,
and faced employment restrictions and discrimination. Structural inequality can
exist in a less explicitly intentional and centralized manner. Differential invest-
ment or allocation of resources in certain regional areas, access to economic op-
portunities structured on the basis of clientelist networks, and patterns of infor-
mal discrimination not effectively prohibited by law and sanctioned according to
social norms are some of the many forms structural inequality can take.

The second feature that characterizes transitional societies prior to the estab-
lishment of any process of transitional justice is what I call normalized collective and
political wrongdoing.4 This feature highlights the fact that during periods of conflict
and/or repression, human rights violations (the wrongdoing) become normalized:
das ist, a basic fact of life for (certain groups of ) citizens. The normalization of
human rights violations is reflected in the numbers of victims of rights abuses that
exist in transitional societies, ranging from hundreds to thousands to hundreds
of thousands and, in some cases, millions. Wrongdoing is collective in the sense
that it characteristically targets groups of citizens on the basis of a particular af-
filiation or identity; religious identity can be one targeted identity, ethnic and na-
tional identities are others. Wrongdoing is political in two ways. Erste, it implicates
state agents or actors acting with the permission of the state or informally on be-
half of the state, as in the case of paramilitaries. Groups contesting the state may
also be implicated in rights violations, with contexts varying in the proportion of
rights abuses committed by government forces versus groups contesting the state.
Zweite, wrongdoing is political in the sense of being bound up with the pursuit
of political objectives. Maintaining a regime, acquiring effective control of land,
overthrowing a regime, separating politically from a state, or eliminating a partic-
ular group via a genocidal campaign are a few of the objectives pursued. For exam-
Bitte, in defense of apartheid, South African security forces routinely arrested and
tortured anti-apartheid activists; the death of Black Consciousness leader Steven
Biko in detention was one especially prominent case. The systematic torture, kill-
ing, abduction, and severe ill-treatment that occurred during the apartheid era be-
came the subject of the mandate of the South African TRC.

Religion plays no simple or single role in pervasive structural inequality or in
normalized collective and political wrongdoing. Religion has been a root cause
of conflict, a marker of those targeted for repression and subject to structural in-
equality, and a source of justification of repression and the basis for privilege in an
unequally structured institutional scheme. When religion becomes intertwined

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149 (3) Summer 2020Colleen Murphy

with ethnic and national identity, as is the case in Northern Ireland, Zum Beispiel,
then differences in national aspiration, rather than differences in theological be-
lief, explain the root sources of conflict. In anderen Fällen, theology itself can provide
resources in defense of and/or resistance to repression and oppression. The Afri-
kaans Reformed Church vigorously defended apartheid on religious grounds.5 By
Kontrast, the South African Council of Churches (SACC) was heavily involved in
supporting the anti-apartheid movement.6 The Catholic Church supported dicta-
tors in South America such as Chile’s Augusto Pinochet and the military junta in
Argentina, while also serving as a source of moral critique of such regimes.7

Victims of human rights abuses have been targeted because of their religious
affiliation and the perpetrators of human rights abuses have included religious of-
ficials.8 In Rwanda, thousands who tried to escape the genocide by finding refuge
in a Catholic church were instead killed.9 In contrast, in retaliation for speaking
out on behalf of the poor and against human rights violations committed by the
government during the civil war in El Salvador, Catholic priest Saint Óscar Rome-
ro was assassinated as he said mass.10

The first two features discussed characterize repressive regimes and contexts
of ongoing conflict and repression. What distinguishes transitional societies from
such ongoing situations is a third additional feature, what I call serious existential
uncertainty. Societies become transitional when there is a credible attempt to end
conflict or repression and transition toward a normatively more defensible state
of affairs, such as democracy. The toppling of a dictator or the signing of a peace
agreement may signal the beginning of a transition. Jedoch, normative aspira-
tions to transition away from war and/or repression do not always materialize
into concrete gains. Serious existential uncertainty captures the fact that success
in any given transition is far from clear. In South Africa, the transition from apart-
heid to multiracial democracy occurred amidst serious uncertainty as to whether
the transition would produce democracy or instead racial civil war. During pe-
riods of transition, war may, and often does, resume. Democratic changes may
not go deeper than the basic holding of elections, which may not be repeated and
which vary in the extent to which they are free and fairly conducted. The fact that
transitions attempted are not necessarily achieved creates subjective uncertainty
for citizens who do not know which conflicting narrative about unfolding events
is most realistic. A peace agreement may be best thought of as a harbinger of a per-
manent period of peace or a temporary pause in civil conflict.

The transitional narrative–the beginning of the achievement of a multiracial
democracy or the beginning of racialized civil war, for example–adopted by cit-
izens and officials shapes their conduct. The success of transitions and the vindi-
cation of a narrative that a community is in fact headed to a normatively better
place is often profoundly affected by whether there are efforts made to deal with
the past wrongdoing via transitional justice processes. In the midst of this existen-

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Dädalus, das Journal der American Academy of Arts & SciencesReligion & Transitional Justice

tial uncertainty, whether and how a community addresses past wrongs can play a
signaling function. Processes that deal with past wrongs in a serious manner can
underscore a recognition on the part of government officials that the modes of in-
teraction in the past are unjustified and can reflect a commitment to establishing
different forms of interaction in the future.

I n the aftermath of extended conflict and repression, societies attempting to

transition from war to peace and from repression to democracy increasingly
engage in efforts to reckon with past wrongdoing. Processes of transitional
justice are formal and informal responses to legacies of human rights violations
stemming from conflict and/or repression. Philosophical literature and literature
in political theory on transitional justice focus on how to understand the moral
defensibility of choices about how to treat past wrongdoing. While the processes
established in the name of transitional justice continue to expand and can include
private undertakings, I focus here on the objectives and the justification of pro-
cesses of transitional justice in the context of formally established and govern-
ment-funded responses to legacies of wrongdoing, such as criminal trials, truth
commissions, and governmental reparations programs.

The need to provide criteria for assessing the moral defensibility of choices
concerning transitional justice processes is driven not only by theoretical interest
in the general question, but also by the practical fact that there is deep disagree-
ment about the defensibility of choices made in transitional contexts. There is no
consensus among citizens, politicians, or scholars about the moral justifiability
of granting amnesty to perpetrators of egregious wrongs, of linking amnesty with
the operation of a truth commission, and/or of pursuing reparations that neces-
sarily fall short of what corrective justice would demand. Vor allem, there is also no
agreement on criteria or terms that would need to be satisfied for justifiability to
Sei (or fail to be) demonstrated.11 Disagreement over criteria has many sources.
One source of disagreement is prompted by recent social scientific studies that
examine the impact of transitional justice processes in particular contexts, show-
ing that their efficacy is much more limited than advocates of transitional justice
often implicitly assume.12 A second, but related, source of disagreement is com-
peting understandings of what the pursuit of justice means when you are dealing
with large-scale wrongdoing that implicates the state and that no single process of
transitional justice has the capacity to fully and completely address.

One way of conceptualizing the disagreement about justice would be in terms
of the appropriate balance to strike between justice and mercy, or the relationship
between justice and forgiveness. The most frequent form of transitional justice re-
sponse in practice is amnesty, whereby individuals or groups are granted immuni-
ty from civil and criminal liability. One might frame amnesty as a choice of mercy,
to refrain from what one has a right to do: punish perpetrators. Retributive justice

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149 (3) Summer 2020Colleen Murphy

is taken to demand deprivations that typically cause suffering, characteristically
in the form of punishment, of perpetrators of wrongdoing. Insofar as responses to
wrongdoing fail to punish perpetrators, such responses require justification, Und
one kind of justification could be a choice to engage in an act of mercy. The em-
phasis of many on forgiveness as a necessary condition for the possibility of tran-
sition, given the widespread and deep anger felt by many victims as conflict and/
or repression ends, and on processes such as truth commissions, which might un-
der certain conditions cultivate forgiveness, could similarly be viewed as a choice
of forgiveness over justice.

But there exists a prior disagreement about the very meaning of justice in tran-
sitional contexts, which needs to be resolved before discussion of the relationship
between justice and mercy can occur.13 To see this, consider another kind of jus-
tice frequently appealed to in transitional contexts: restorative justice. Core tenets
of restorative justice include conceptualizing crime or wrongdoing as a problem
in part because of its impacts on relationships, both between perpetrators and
victims; and among victims, perpetrators, and their broader community. Practices
that can repair the relationships ruptured by wrongdoing are emphasized, In-
cluding, insbesondere, ones that provide an opportunity for perpetrators to make
amends to their victims and for victims to forgive their perpetrators. Through
amends and forgiveness, the claim is, reconciliation can be achieved.14 Thus, für
restorative justice advocates, forgiveness is an essential part of justice, not a value
distinct from and potentially in tension with justice. Darüber hinaus, retributive and
restorative justice are seen as fundamentally in tension, and in the face of this ten-
sion, restorative justice advocates believe that it should be prioritized over retri-
bution.15 Restorative justice proponents do disagree about whether punishment is
compatible with its demands. For those who view punishment as outside the pa-
rameters of what restorative justice permits, a choice to refrain from punishment
is not necessarily a choice of mercy but rather a choice of justice.

While restorative justice can be and is defined in secular terms, the core ideas of
restorative justice are also defined in religious terms in the literature on transitional
justice. Political scientist Daniel Philpott, Zum Beispiel, has developed a conception
of reconciliation that incorporates the core components of the idea of restorative
justice articulated above and shows how it can be the subject of overlapping con-
sensus among members of the Abrahamic faiths.16 Religion and religious under-
standings, theologian Alan Torrance has argued, can provide additional resources
in defense of forgiveness, resources that in fact made possible remarkable transi-
tions like that of South Africa. Consider, er schreibt, the Judeo-Christian conception
of God’s covenant of grace with humanity, unilaterally established by God, Wo-
by God freely committed to be faithful to Israel unconditionally, regardless of con-
siderations of human worthiness. Once we realize that God’s love and forgiveness
are unconditional, Torrance argues, this inspires repentance and commitments to

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Dädalus, das Journal der American Academy of Arts & SciencesReligion & Transitional Justice

be faithful to our obligations to God and to humanity. When relating to human
beings, the covenant suggests that we are to love one’s enemies and friends uncon-
ditionally and to forgive unconditionally. Such forgiveness is not contingent upon
conditions and can inspire the repentance in others that our recognition of God’s
unconditional forgiveness inspires in us.17 Guided by this conception, forgiveness
and repentance can be achieved among citizens in transitional communities.

Im Gegensatz, in my own work, I have argued for a distinctive conception of tran-
sitional justice, not reducible to either retributive or restorative justice. Drawing
on David Hume’s notion of the circumstances of justice, I argue that in the cir-
cumstances of transitional justice, the problem of justice that is salient is distinc-
tive from the problem addressed by familiar forms of justice such as retributive
or corrective justice. The circumstances of transitional justice include the three
features highlighted above: nämlich, pervasive structural inequality, normalized
collective and political wrongdoing, and serious existential uncertainty. Eher
than turning to theology, I defend the claim of the distinctiveness of transitional
justice by developing a philosophical account of justice that takes context serious-
ly.18 My argument examines the circumstances of what I call “stable democrat-
ic societies,” circumstances implicitly assumed to be present in the societies for
which philosophers articulate conceptions of what retributive or distributive jus-
tice require. Such features include limited structural inequality (so that the insti-
tutional order remains legitimate even as reform is always possible) and individu-
al and personal wrongdoing (so that ordinary criminality not implicating the state
is presumed to be the subject of a retributive response). Shifting circumstances to
transitional contexts, Jedoch, the core arguments for why retribution, for exam-
Bitte, is necessary become much less plausible. For one thing, responding to perpe-
trators is only part of the problem salient in transitions. The standing of the state
to respond to past wrongs is something to be established and cannot be assumed
(for reasons I discuss below). And the efficacy of the punishment of one perpe-
trator to restore the equality of the victim, who was subjected to a form of nor-
malized wrongdoing implicating the state and committed against a background
of pervasive inequality, is doubtful.

The core normative aim of transitional justice, I claim, is transforming politi-
cal relationships in a just manner.19 The overarching goal is to alter the basic terms
structuring interaction among citizens and between citizens and officials so that
recent histories of apartheid, genocide, systemic impoverishment, and corrup-
tion will not define or be repeated in the future. This process of transforming rela-
tionships links transitional justice with political reconciliation, the process of re-
pairing damaged political relationships. In fleshing out what such transformation
requires, I draw on core concepts in the liberal tradition that include relational
concerns. Zum Beispiel, consider the ideal of the rule of law, which specifies how
legal institutions should structure political relationships. If you adopt a perspec-

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149 (3) Summer 2020Colleen Murphy

tive on the rule of law like that of legal scholar Lon Fuller, then a number of so-
cial and moral conditions must be in place for law to govern conduct in a manner
that is reciprocal and respectful of agency.20 Such conditions include faith in law
on the part of citizens and basic decency on the part of officials.21 Mutual trust
among citizens and between citizens and officials is part of what the rule of law
can create; departures from the rule of law in turn generate, in Fuller’s view, Re-
sentment and distrust. Distrust, the erosion of the rule of law, and lack of faith in
law or decency on the part of officials are all actual, acute problems characteristi-
cally found in transitional contexts. As illustrations of the problems that transi-
tional justice processes must help societies address, the South African TRC report
highlighted the multiple and systematic ways in which South African security of-
ficials operated outside of what declared rules permitted. The TRC was highly crit-
ical of the legal profession for the failure of lawyers and judges to adhere to the
rule of law in more than a superficial sense.22 Pursuing transformation in a just
manner requires satisfying the moral claims of victims and the moral demands on
perpetrators to a threshold level.23 Such demands include, Zum Beispiel, the right
of victims to repair harm suffered and the demand on perpetrators that they ac-
knowledge responsibility for wrongs in which they are implicated.

When faced with competing understandings of what justice requires in transi-
tional circumstances, which understanding should be adopted? One criterion for
selection is which conception provides theoretical resources communities need
to navigate away from conflict and repression as they deal with past wrongs. Im
view of many scholars, the conception of justice most suited to transitional con-
texts is restorative justice. According to such views, successful transitions in fact
depend on forgiveness. Forgiveness in turn is best justified in theological terms.
Consider Philpott’s anthology, The Politics of Past Evil, which focuses on the moral
dilemmas and challenges facing transitional societies and in particular on the role
that theology should play in “the theory and practice of reconciliation.”24 Con-
tributors such as Torrance, philosopher Nicholas Wolterstorff, and theologian
David Burrell all defend a conception of restorative justice and argue that forgive-
ness plays an essential role in creating a just society. In Burrell’s view, people will
often view the same act differently, especially in divided contexts. Some will view
the infliction of suffering characteristic of punishment as an act of justice; Andere
will see it as an unwarranted act of injustice or revenge. These conflicting perspec-
tives on the same act help us understand why punishment contributes to a spiral
of violence. Those who see the suffering constitutive of punishment as revenge
or unjustifiable will engage in a counterattack. Daher, as Burrell has noted, Dort
is “mounting evidence that nothing short of the quality of forgiveness at once
demanded and facilitated by the Abrahamic revelations will be able to empower
people to make a fresh start after the devastation endorsed by the shadow sides of
those same religious faiths.”25

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The explicit appeal by some scholars to theological justifications for forgive-
ness in the context of the justification of public policy choices for dealing with
past human rights abuses is controversial. In der Tat, appealing to the importance
of justifying policies on the basis of public reasons, scholars such as Amy Gut-
mann and Dennis Thompson have explicitly argued that justifications of process-
es of transitional justice must be based on reasons that are accessible to all citizens
and therefore cannot include an appeal to specifically religious considerations of
the kind articulated above. In response to the justification of the South African
Truth and Reconciliation Commission offered by many of its proponents, inkl-
ing Archbishop Desmond Tutu, which framed the work of the TRC in terms of the
cultivation of restorative justice through forgiveness, Gutmann and Thompson
worry that that justification failed to be moral in perspective. They argue that the
reasons in defense of having any particular transitional process must be, as far as
möglich, broadly accessible and inclusive of those who seek a moral justification.
This requires an appeal to public reasons that are not specifically religious reasons
that will appeal only to fellow adherents. In the context of the TRC, forgiveness,
they argued, depended upon a particularly Christian understanding of reconcilia-
tion that would fail to be sufficiently publicly accessible.26

Some scholars take the critique of Gutmann and Thompson to point to a po-
tential tension between the commitments of liberalism and of transitional justice.
And some scholars have argued that we should choose theologically grounded no-
tions of reconciliation and its prescriptions for transitional justice over liberal-
ism. There are two main reasons advanced in defense of this choice: Erste, Sie
claim, liberalism lacks the conceptual resources for sufficiently spelling out core
transitional concepts, like reconciliation and transitional justice itself. Zweite,
liberalism lacks the conceptual resources for creatively and accurately offering
prescriptions for transitional contexts.27 In other words, liberals lack the theoreti-
cal resources for analyzing the character of communal, political relationships and
the process of their restoration. Nor can liberals thus make a successful case for
the claim that reconciliation is a significant goal. Philpott writes that “theology
will be required to account not only for reconciliation’s intelligibility but also for
its warrant: das ist, the reasons why we should endorse it. It may turn out that
only theological commitments can explain why restoration, not justice as desert
or rights or entitlement, ought to be the conceptual lodestar of justice.”28

In Beantwortung, I first want to note that there are many versions of public reason
and liberalism that permit the articulation of religious justifications of policy
choices.29 Thus, it seems overstated to suggest there may be a fundamental ten-
sion between liberalism and religion as such in transitional contexts. Jedoch,
insofar as there is tension that requires a choice, the choice should, meiner Meinung nach,
be in favor of liberalism. For one thing, both of the criticisms of liberalism are
overstated. Liberalism does not lack the conceptual resources for dealing with the

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concept of political reconciliation or the challenges of transitional contexts. Sec-
ular liberal accounts of transitional justice, such as my own, can and do articulate
it as a substantial value that is rich in content and that speaks to actual challenges
in transitions.

For another, to reject liberal democracy is to reject a constitutive element of the
aspiration of transitional societies. This aspiration should, I believe, influence our
understanding of reconciliation and of concepts including transitional justice itself.
Transitional justice concentrates on a subset of the transitions of which we might
speak. Instead of talking about a transition to liberal constitutional democracy, Wir
could talk of a transition to authoritarian rule or an Islamic republic. But those ob-
jectives do not normatively respond to the moral complaints of citizens during con-
flict and repression in the manner that liberal democracy does. It is with demands
for respecting human rights and for democratic inclusion that protest movements
lead to the fall of repressive regimes. Darüber hinaus, respect for rights and democracy
are needed for citizens to be equals within the community, for only with opportuni-
ties for democratic participation can citizens have turns to both rule and be ruled.
The normative aim of a liberal democratic political community should influence
our understanding of the kinds of relationships we want to promote, and the ba-
sis on which official policies and processes designed to deal with past wrongdoings
should shape our understanding of the goals to which such policies should strive.

A different rejoinder to my argument would not reject the priority of liberalism
but would suggest that it is possible to have religious conceptions of justice that jus-
tify forgiveness in liberal democratic contexts. As noted earlier, and echoing phi-
losopher John Rawls’s notion of justification as the product of an overlapping con-
sensus, Philpott, in his later work, defends his notion of transitional justice, welche
draws on restorative justice and thus prioritizes forgiveness in part by showing how
it could be the subject of an overlapping consensus among Muslims, Christians,
and Jews.30 I note here first that an extension of this strategy would be needed to be
applicable to the many political contexts in which transitional justice occurs, welche
extend far beyond societies in which members of the Abrahamic faiths reside.

But even if forgiveness can be defended from the perspective of an overlap-
ping consensus as a valuable and important dimension of individual responses to
wrongdoing, it is still a mistake to include this as a necessary component of tran-
sitional justice. Transitional justice processes of interest in this essay are those es-
tablished by governments. In evaluating whether a given process “worked,” the
answer will be shaped by what the policy was intended to do. Policies intended to
foster forgiveness, because forgiveness is what transitional justice demands, Wille
be deeply problematic especially in transitional contexts for a number of reasons.
Erste, they place the burden of relational repair on victims. Policies predicated on
forgiveness will be successful only insofar as victims overcome their anger or re-
sentment at having been wronged. Jedoch, the majority of victims in transition-

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al contexts are frequently from already marginalized backgrounds, and the expe-
rience of victims has been one of denial of their experience on the part of govern-
ments and isolation or ostracism within their communities in the aftermath of
certain rights violations. Victims often bear the consequences of their wrongdo-
ing alone and those consequences, not just in terms of immediate harm but also
in terms of social effects, are ongoing. Daher, paying attention to the context in
which forgiveness is being urged is critical. Requiring for policy success that vic-
tims overcome their anger risks failing a second time to take seriously the wrongs
to which they were subjected and the right of victims to be angry in response. Sec-
ond, overcoming anger on the part of victims does not resolve the broader back-
ground structural inequality and normalization of wrongdoing that rendered vic-
tims vulnerable and contributes to the ongoing effects they suffer from their vic-
timization. Darüber hinaus, it is precisely this structural inequality and the conditions
that enabled the normalization of wrongdoing that must be addressed to prevent
a recurrence of conflict, repression, and their characteristic wrongdoing.

Rejecting the suitability of forgiveness as an aim toward which public policies
and processes of transitional justice should strive does not imply any evaluation
of the permissibility or justifiability of forgiveness as an individual choice of par-
ticular victims. Nor is it to set limits to what private organizations, including reli-
gious organizations, may advocate. It is rather to criticize framing policy success
or failure as a function of overcoming the anger and resentment constitutive of
forgiveness.

O ne further area regarding religion has received less attention in the liter-

ature than one might expect. This is in part because it is bound up with
questions of authority that have garnered less interest than they should.
As Philpott has correctly noted, religious figures frequently play a critical role in
the promotion of transitional justice and political reconciliation, and indeed take
up official roles in transitional justice processes. In Philpott’s words,

In South Africa, Christian churches and theologically minded leaders, as well as Mus-
lim leaders, urged a truth and reconciliation commission. . . . Religious communities
in Brazil courageously conducted an underground inquiry into the truth. Ähnlich,
Chile’s Catholic Church was instrumental in investigating abuses under the rule of
General Pinochet. . . . East Timor’s Nobel Prize–winning Bishop Carlos Belo was in-
strumental in calling for reconciliation. . . . In Guatemala, Bishop Juan Gerardi . . . sogar
formed and conducted an entire separate commission.31

The fourth and final circumstance of transitional justice, what I call fundamen-
tal uncertainty about authority, provides resources for explaining why religious fig-
ures play such prominent roles. There are two dimensions of uncertainty with
respect to authority present in transitional contexts. The first narrowly concerns

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149 (3) Summer 2020Colleen Murphy

uncertainty with respect to the standing of the state to deal with past wrongs.
Philosophical explanations of the authority of the state to deal with wrongdoing
through criminal trial and punishment characteristically assume that the govern-
ment of concern is legitimate and that it is not directly implicated in the wrong-
doing under consideration. Als solche, the standing of the state to respond to wrong-
doing stems from its ability to be an impartial party and its status as a representative
of a community’s defensible values, which criminal wrongdoing flouted.32 That
explanation of why retributive justice is appropriately meted out by the state will
not always work in transitional contexts. Wie oben erwähnt, the state is charac-
teristically implicated in the wrongs that may now become the subject of criminal
prosecution, such as when security contractors hired by and representing the state
commit torture or massacre a group of civilians. Daher, there arises a fundamental
question of establishing the basis upon which the government has standing to deal
with such wrongs. Against a background of questions about the authority of the
state, it is unsurprising that in practice, in transitional contexts, nonstate groups
or individuals representing such groups deal with past wrongs in ways that do not
generate questions about their standing to do so. Questions of standing that would
otherwise be raised in a stable democratic context–were the Catholic Church to
undertake an official inquiry into police brutality or ethical violations by govern-
ment officials, for instance–do not come up in transitional contexts.

The second source of uncertainty about authority is a function of the fact that
the authority of the new government to rule during a transition is not complete-
ly established. In transitional contexts, it is practically impossible to complete-
ly overhaul existing institutions, Praktiken Methoden Ausübungen, and personnel in the immediate term.
Daher, as foreign policy scholar Thomas Carothers has pointed out, transitional
societies characteristically

have some attributes of democratic political life, including at least limited political
space for opposition parties and independent civil society, as well as regular elections
and democratic constitutions. Yet they suffer from serious democratic deficits, often
einschließlich . . . frequent abuse of the law by government officials, elections of uncertain
legitimacy, very low levels of public confidence in state institutions.33

A transition is necessary because of the pervasive inequality in the struc-
ture of political relationships among citizens and between citizens and officials
during conflict and repression. Yet during the transitional period itself, democrat-
ic structures of authority are being constructed and established but have not yet
been consolidated. In der Tat, part of the function of transitional justice processes
becomes trying to bootstrap into existence the authority of the new government
where it has been absent.

Daher, in transitional periods, there exists this background challenge of build-
ing the legitimacy of government institutions both to deal with wrongdoing and,

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more broadly, to rule. In diesem Kontext, the authority of any official involved with
transitional justice processes is often not taken to be a function of the process
by which he or she was appointed, as it is in stable democratic contexts. Intense
scrutiny of the particular choices made for commissioners of truth commissions
or judges for courts also occurs against a background of weak domestic institu-
tionen; the pervasive influence of international nongovernmental organizations,
especially in transitional societies in the Global South; the monitoring of the In-
ternational Criminal Court; and the historical exclusion of certain groups from
positions of decision-making within particular transitional societies. As a re-
Ergebnis, the justification of the authority of officials running truth commissions or
deciding which transitional justice process will be adopted becomes much more
individualized.

Emphasis has been placed on the diversity of actors exercising domestic and
effective decision-making power, so that individuals representing different com-
munities within a society are present.34 In addition, the authority of such repre-
sentative decision-makers and commissions has been made not by pointing to the
process by which someone was selected as an official, as is typical in government
processes in stable democratic contexts. Eher, the extent to which an individual
was a moral exemplar during the period of conflict and repression often influenc-
es his or her authority to chair a truth commission. It is in the context of these dis-
cussions that we can situate the prominent role of religious figures in many transi-
tional justice processes. Hier, their fittingness to assume the role of commissioner
in a transitional justice process is a function of individual biography and the moral
authority that biography generates.

I n this essay, I have provided a broad overview of the role of religious figures

and the debates about religious justifications for public policy choices that
are prominent in the literature on transitional justice. By way of conclusion,
I want to highlight some of the further questions raised by the de facto reliance
on the individual moral standing of commissioners to establish their authority to
choose or run transitional justice processes.

One question is whether this appeal to individual moral standing is justified. ICH
provided reasons to explain why this appeal has come about, given the absence of
a stable framework of the authority of a government to rule and more specifically
to deal with past wrongs. Jedoch, those reasons do not themselves provide a de-
fense of this practice.

Zweite, insofar as more individually based standards for authority are defensi-
ble, there are questions about the constraints that should appropriately be placed
on an individually based analysis of authority or standing.

A fundamental goal of transitional communities is to consolidate the authority
of a new government and/or institution established by a government to deal with

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149 (3) Summer 2020Colleen Murphy

past wrongs. When consolidated, the explanation for why any official has the au-
thority to issue rules governing the conduct of citizens or investigate past wrongs
in an official capacity will not appeal to his or her moral stature. Eher, it will ap-
peal to the process through which he or she came to assume the position he or she
now holds. A final question warranting further explanation is how to understand
the relationship between the (ideally temporary) reliance on moral exemplars for
the authority of transitional justice processes and the goal of legitimizing state in-
stitutions. Whether and when moral exemplars contribute to the bootstrapping
into existence of the credible authority of a state needs to be articulated.

author’s note

An earlier version of this essay was presented at a seminar on “Religion and Democ-
racy” sponsored by the Australian Catholic University in March 2019 at its campus
in Rome. I am grateful to the attendees for their helpful feedback on that draft. Spe-
cial thanks are due to Annette Bryson, who served as commentator at that seminar,
and to Robert Audi, who issued the invitation to attend the seminar and who pro-
vided extensive feedback on multiple drafts following the seminar.

about the author

Colleen Murphy is Professor in the College of Law with courtesy appointments in
the Departments of Philosophy and Political Science at the University of Illinois at
Urbana-Champaign, where she is also Director of the Women and Gender in Glob-
al Perspectives Program. She is the author of The Conceptual Foundations of Transition-
al Justice (2017), A Moral Theory of Political Reconciliation (2010), as well as more than
fifty articles and book chapters. She is an Associate Editor of Journal of Ethics and So-
cial Philosophy, Journal of Human Development and Capabilities, Journal of Moral Philosophy,
and Science and Engineering Ethics, and a Member of the Editorial Board of Law and
Philosophy.

Endnoten

1 That transitional justice processes are established as a society aims to move toward a bet-
ter state and that a constitutive element of that better state includes democracy have
been the subject of critique, where the possibility of transitional justice processes in
societies not in transition and in the context of a nondemocratic transition have been
raised.

2 I argue at length for these conditions in Colleen Murphy, The Conceptual Foundations of Tran-
sitional Justice (New York: Cambridge University Press, 2017). Sehen, insbesondere, Kerl. 1.

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3 I use “black South African” to refer to South Africans categorized as Indian, Coloured, oder

African during the apartheid regime.

4 Murphy, The Conceptual Foundations of Transitional Justice, Kerl. 1.

5 See Truth and Reconciliation Commission of South Africa, Final Report, Volumen 4 (Cape
Town: Truth and Reconciliation Commission, 1998), 91, http://www.justice.gov.za/
trc/report/finalreport/Volume%204.pdf.

6 Rita M. Byrnes, Hrsg., Südafrika: A Country Study (Washington, D.C.: Government Pub-
lishing Office for the Library of Congress, 1996), http://countrystudies.us/south-africa
/53.htm.

7 Katharine Davis, “Katharine Davis on the Role of the Catholic Church in Politics in Chile,”
Georgetown University Berkley Center for Religion, Peace and World Affairs, Marsch 1,
2007, https://berkleycenter.georgetown.edu/posts/katharine-davis-on-the-role-of-the
-catholic-church-in-politics-in-chile; and Julia G. Jung, “The Catholic Church & Ar-
gentina’s Dirty War: Victims, Perpetrators, or Witnesses,” Commonweal 142 (16) (2015),
https://www.commonwealmagazine.org/catholic-church-argentinas-dirty-war.
8 For a comprehensive discussion of the role of religion, see R. Scott Appleby, The Ambiva-
lence of the Sacred: Religion, Gewalt, and Reconciliation (New York: Rowman & Littlefield,
2000).

9 Harriet Sherwood, “Pope Francis Asks for Forgiveness for Church’s Role in Rwanda
Völkermord,” The Guardian, Marsch 20, 2017, https://www.theguardian.com/world/2017/
mar/20/pope-francis-asks-for-forgiveness-for-churchs-role-in-rwanda-genocide.
10 “St. Óscar Romero,” Encyclopaedia Britannica, https://www.britannica.com/bio

graphy/Oscar-Arnulfo-Romero.

11 On these disagreements, see Murphy, The Conceptual Foundations of Transitional Justice, In-
troduction; Antjie Krog, Country of My Skull: Guilt, Sorrow, and the Limits of Forgiveness in the
New South Africa (New York: Broadway Books, 2007); and Colleen Murphy, “Judging
the Justice of the Colombian Peace Agreement,” unpublished draft.

12 Sehen, Zum Beispiel, Padraig McAuliffe, Transformative Transitional Justice and the Malleability of
Post-Conflict States (Cheltenham, Großbritannien: Edward Elgar Publishing, 2017).
13 Eric Posner and Adrian Vermeule, “Transitional Justice as Ordinary Justice,” Harvard Law
Rezension 117 (3) (2004): 761–825; Jonathan Allen, “Balancing Justice and Social Utility:
Political Theory and the Idea of a Truth and Reconciliation Commission,” University of
Toronto Law Journal 49 (3) (1999): 315–353; and Lucy Allais, “Restorative Justice, Retrib-
utive Justice, and the South African Truth and Reconciliation Commission,” Philosophy
and Public Affairs 39 (4) (2012): 331–363.

14 Daniel Philpott, Just and Unjust Peace: An Ethic of Political Reconciliation (New York: Oxford

Universitätsverlag, 2012).

15 Jennifer Llewellyn and Robert Howse, “Institutions for Restorative Justice: The South
African Truth and Reconciliation Commission,” University of Toronto Law Journal 49 (3)
(1999): 355–388.

16 Philpott, Just and Unjust Peace.
17 Daniel Philpott, The Politics of Past Evil: Religion, Reconciliation, and the Dilemmas of Transitional

Justice (Notre Dame, Ind.: University of Notre Dame Press, 2006), 55.

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18 Kapitel 2 of Murphy, The Conceptual Foundations of Transitional Justice, focuses on this argu-

ment in particular.

19 See chapters 2 Und 3 in ibid.
20 Lon Fuller, The Morality of Law, rev. Hrsg. (New Haven, Conn.: Yale University Press, 1969).
21 Colleen Murphy, A Moral Theory of Political Reconciliation (New York: Cambridge Universi-

ty Press, 2010).

22 “Part of the reason for the longevity of apartheid was the superficial adherence to ‘rule
by law’ by the National Party (NP), whose leaders craved the aura of legitimacy that
‘the law’ bestowed on their harsh injustice. Significantly, this state of affairs was not
achieved in the early stages of NP rule. It began after the coloured vote crisis in the mid-
1950S, when the restructuring of judicial personnel and the Appellate Division took ef-
fect, and the white electorate lent its support to the constitutional fraud resorted to by
the government to circumvent the entrenched clauses of the South Africa Act. It was
manifestly abandoned when emergency executive decree became the chosen medium
of government towards the end of formal apartheid–from the mid-1980s–when a cli-
mate of ‘state lawlessness’ prevailed and the pretence of adherence to the rule of law
was abandoned by the Botha regime.” Truth and Reconciliation Commission of South
Africa, Final Report, para. 32.

23 I lay out these claims and demands in chapter 4 of Murphy, The Conceptual Foundations of

Transitional Justice.

24 Philpott, The Politics of Past Evil.
25 Ebenda., 124–125.
26 Amy Gutmann and Dennis Thompson, “The Moral Foundations of Truth Commis-
sionen,” in Truth v. Justice: The Morality of Truth Commissions, Hrsg. Robert I. Rotberg and Den-
nis Thompson (Princeton, N.J.: Princeton University Press, 2000), 22–44; and David
Dyzenhaus, “Survey Article: Justifying the Truth and Reconciliation Commission,”
Journal of Political Philosophy 8 (4) (2000): 470–496.

27 Philpott, The Politics of Past Evil, 13.
28 Ebenda., 34.
29 On this point, see Jonathan Quong, “Public Reason,” The Stanford Encyclopedia of Philosophy,
Frühling 2018 Hrsg., Edward N. Zalta, Hrsg., https://plato.stanford.edu/archives/spr2018/
entries/public-reason/.
30 Philpott, Just and Unjust Peace.
31 Philpott, The Politics of Past Evil, 5. He notes that this has not uniformly been the case. Dort
are societies with strong religious communities (such as Northern Ireland) that have
not provided an impetus for a truth commission and societies where the religious com-
munities did not contribute, given their implication in previous abuses, like Rwanda.
32 Sehen, Zum Beispiel, Jean Hampton, “Correcting Harms versus Righting Wrongs: The Goal

of Retribution,” UCLA Law Review 39 (6) (1992): 1659–1702.

33 Thomas Carothers, “The End of the Transition Paradigm,” Journal of Democracy 13 (1)

(2002): 9–10.

34 On the place diversity considerations figure, see Colleen Murphy, “The Ethics of Diversi-
ty in Transitional Justice,” Georgetown Journal of Law and Public Policy 16 (2018): 821–836.

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