Overview

Peter presented Andrew Valls’s paper “Racial Justice as Transitional Justice” (Valls 2003). This paper has three main sections.

1. The first is about the nature of transitional justice
2. The second is about how the civil rights era in the US was a failed attempt at transitional justice
3. And the third is about what to do going forward.

Each section is organized around three elements of transitional justice that are identified in the first sections: (i) punishment, (ii) compensation, and (iii) symbolic measures.

I thought the application of ideas about transitional justice to the US in the second part was one of the paper’s most interesting points. I had not thought of it that way but, having read the paper, I am persuaded.

However the first part is where most of the argument is developed and so that is where we devoted our attention. In this part of the paper, Valls tries to identify a position that incorporates both forward and backwards looking considerations. His thesis is as follows.

I will argue that transitional measures such as prosecution, compensation, and acknowledgement should be understood as necessary to create the conditions under which it is reasonable for all citizens to reconcile themselves to each other and to the successor regime. (Valls 2003, 56)

We talked a lot about his use of Rawls’s concept of a reasonable person and also about the differences between forward and backwards considerations.

I found his invocation of Rawls surprising because Rawls’s theory is exclusively forward looking. It asks what the parties in the original position would choose and the parties in the original position only care about forward looking considerations. They want to maximize their share of primary social goods and have no moral motivations at all. So they would not care about past injustice.

I also found that while I was reading the article I started thinking that backwards and forwards looking considerations ought to be put on a more even footing. For instance, we care about forward looking considerations of justice because we care about people’s rights. But the same should be true of backwards looking considerations of justice: people who were treated unjustly in the past have a right to compensation. Similarly, while there are many reasons for qualifying our pursuit of backwards looking considerations of justice, the same can be said of forward looking ones. If paying off all of the compensation owed to victims of slavery would bankrupt the economy, that is a right not to do it. But the same is true of forward looking considerations: if ensuring genuinely equal opportunity in the future would bankrupt the economy, that is a reason not to do it.

One more thing. The line “to each according to his threat advantage is not a principle of justice” comes from Rawls (Rawls 1999, 122).