移行期正義―解明・評価・展望

抄録

In the past two decades, a growing number of political philosophers, jurists, and theologians have discussed the virtues and limitations of major policy measures of transitional justice, including criminal trials, truth commissions, lustration, amnesty, military and police reforms, and reparations. In contrast with numerous evaluative studies on specific policy tools, few efforts have been made to scrutinize the ideal of transitional justice underlying these tools. Another feature of the literature of normative study on the subject is that, in focusing on a small number of salient cases, notably the South African Truth and Reconciliation Commission, many authors have assumed the misguided framework of “truth vs. justice.” Still another shortcoming is that normative theorists have paid scant attention to findings of the emerging quantitative research on transitional justice policies.
To remedy these drawbacks of the literature, this paper begins by explicating the ideal of transitional justice. After formulating the concept of justice as a good equilibrium, I distinguish between two dimensions of justice: the dimension of desert-based treatment and that of equal treatment of similar persons/groups. These considerations reveal that the ideal of transitional justice does not exclusively demand trials of perpetrators but also such victim-centered policies as truth commissions and reparations.
Next, I argue that the “truth vs. justice” framework is incorrect partly because, when retroactive laws are invoked in trials, the prosecution and punishment of wrongdoers might violate the equal-treatment requirement of justice and the rule of law. Another reason against this framework is that truth commissions can advance the conception of justice as acknowledgment by helping prosecutions and civil lawsuits. Truth-inquiry institutions also promote the conception of justice as recognition by symbolically restoring the dignity of victims and survivors.
Finally, this paper discusses the implications that recent quantitative observations on transitional justice policies might have for normative study. Works of large-N statistical research to date have shown that the single use of a truth commission adversely affects the succeeding process of human rights protection and has no statistically significant impact on that of democratization. Moreover, neither trial nor amnesty has any significant impact on human rights or democracy. Only in countries where all three mechanisms were adopted, have positive effects on human rights and democracy been observed. These findings imply that a normative theory of transitional justice needs to seek a combination of, not a choice between, different policy measures.