Socializing Negative Emotions: Transitional Criminal Trials in The Service of Democracy

Oxford Journal of Legal Studies, Vol. 31, No. 1 (2011), pp.
111–131
doi:10.1093/ojls/gqq037
Published Advance Access December 23, 2010
Socializing Negative Emotions:
Downloaded from https://academic.oup.com/ojls/article/31/1/111/1581332 by Università degli Studi di Genova user on 09 June 2022
Transitional Criminal Trials in the
Service of Democracy
MIHAELA MIHAI*
Abstract—This paper seeks to contribute to the field of transitional justice by

adding new insights about the role that trials of victimizers can play within
democratization processes. The main argument is that criminal proceedings
affirming the value of equal respect and concern for both victims and abusers
can contribute to the socialization of citizens’ politically relevant emotions. More
precisely, using law constructively to engage public resentment and indignation can
be successful to the extent that legality is not sacrificed. In order to locate this
argument within the rich literature on the pedagogical functions of transitional
trials this paper enters a dialogue with three emblematic texts. Lawrence Douglas’s
narrative jurisprudence approach, Judith Shklar’s critique of the limits of legalism,
and Marc Osiel’s interest in ‘discursive solidarity’ represent starting points for a
more complex conceptualization of the relationship between democracy, law and
emotional education within transformational periods.
Keywords: transitional justice, criminal trials, emotions
1. Introduction
‘Transitional justice’ has been coined to refer to processes of dealing with a past
of violence after the third wave of democracy in the second half of the 20th
Century.1 The mechanisms of transitional justice are criminal prosecutions,
lustration, Truth (and Reconciliation) Commissions (TRCs), reparations, the
* Post-doctoral fellow, Centre for Social Studies, University of Coimbra, Portugal. Email: mihaelamihai@
ces.uc.pt. I would like to thank Simone Chambers, David Dyzenhaus, Joseph Heath, Mathias Thaler, Daniel
Weinstock and Melissa Williams for useful comments on earlier versions of this article. I also wish to acknowledge
the wonderful suggestions form the Journal’s anonymous reviewers.
1
Ruti Teitel coined the term in 1991 for transformations in Latin America and Eastern Europe. For the
account of the third wave of democratization see SP Huntington, The Third Wave: Democratisation in the Late
Twentieth Century (U Oklahoma Press, Norman, OK 1991).
ß The Author 2010. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oup.com
112 Oxford Journal of Legal Studies VOL. 31
building of memorials and exhumations.2 While transitional justice is an old

concern,3 some rather recent international and domestic developments have
brought it into the spotlight of academic attention. The media scrutiny of state
sponsored atrocities everywhere, the increased number of non-governmental
organizations monitoring human rights, the developments in international
human rights law, the establishment of international and hybrid criminal
courts, as well as the changes in the nature of war-waging have focused
scholars’ attention on the choices societies make in the aftermath of major
suffering. In the last decades, the literature on transitional justice has developed
as a specialized field of research. Political scientists, historians, sociologists,
psychologists and philosophers have been working towards a better under-
standing of the main problems that societies coming out of authoritarianism or
civil conflict face.4
Within this literature, there is a large body of research on criminal trials of
victimizers. Lots of ink has been spilled over what criminal trials can contribute
to the more encompassing projects of transitional justice. The traditional
purposes of criminal law, deterrence and retribution, were supplemented with
other objectives: raising legal awareness by institutionalizing and moderating
the desire for revenge,5 protecting democratic values,6 transforming the
collective consciousness of people,7 sending the message that impunity was
not permissible,8 giving victims a sense of security and satisfaction,9
re-establishing the credibility of the judiciary10 and shaping memory and
processes of remembering.11 The didactic dimension of trials also got special
attention. Be it the communication of a founding narrative,12 the encourage-
ment of respect for the rule of law13 or the cultivation of democratic
solidarity,14 trials create important opportunities for legal educators.
2
For overviews of the main mechanisms, their benefits and downsides, see AM Khazanov and SG Paine,
‘How to Deal with the Past?’ (2008) 9 Total Move Polit Relig 411–31 and M Arenhövel, ‘Democratization and
Transitional Justice’ (2008) 15 Democratization 570–87. For a critique of ‘transitional justice’ as presupposing a
narrow understanding of violence, see R Nagy, ‘Transitional Justice as Global Project’ (2008) 29 Third World Q
275–89.
3
Elster goes back to the processes Athens went through after the fall of the two oligarchies in 410 and 403
BC. See J Elster, Closing the Books: Transitional Justice in Historical Perspective (CUP, Cambridge 2004).
4
Bell argues against viewing transitional justice as a ‘field’: C Bell, ‘Transitional Justice, Interdisciplinarity
and the State of the ‘‘Field’’ or ‘‘Non-Field’’ ’ (2009) 3 IJTJ 5–27.
5
GJ Bass, Stay the Hand of Vengeance (Princeton UP, Princeton, NJ 2000).
6
CS Nino, Radical Evil on Trial (Yale UP, New Haven, CT 1996).
7
L Bilsky, Transformative Justice: Israeli Identity on Trial (U Michigan Press, Ann Arbor, MI 2007).
8
M Penrose, ‘Impunity, Inertia and Invalidity: A Literature Review’ (1999) 17 Boston U Intl L Rev 269–
310.
9
A Dorfman, ‘Foreword’ in E Stover and HM Weinstein (eds), My Neighbor, My Enemy: Justice and
Community in the Aftermath of Mass Atrocity (CUP, Cambridge 2004).
10
P Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (Routledge, New York 2001); MC
Bassiouni (ed), Post-conflict Justice (Transnational Publishers, Ardsley, NY 2002).
11
R Uitz, Constitutions Courts and History: Historical Narratives in Constitutional Adjudication (CEU Press,
Budapest 2005).
12
L Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale UP, New
Haven, CT 2005).
13
J Shklar, Legalism: Law, Politics and Political Trials (Harvard UP, Cambridge, MA 1964); Bass (n 5).
14
M Osiel, Mass Atrocity, Collective Memory and the Law (Transaction Publishers, New Brunswick, NJ 1997).
SPRING 2011 Socializing Negative Emotions 113
It is within this body of literature that I will locate my contribution. This
article will try to refine the understanding of these trials’ pedagogy by
disclosing one more dimension of the circumstances of justice in transition: the
potential for exemplary judicial decisions constructively to engage their
addressees’ negative emotions of resentment and indignation. I conceptualize
these emotions as markers of a capacity for a sense of justice.15 I shall analyse
in turn the pedagogical functions that Judith Shklar, Lawrence Douglas and
Mark Osiel ascribe to criminal trials in the aftermath of atrocity and try to
supplement their accounts with yet one more layer of complexity. I choose their
work as a starting point due to the fact that they all recognize, to some extent,
the educational merits of such proceedings. Yet I argue that there are two
limitations to their understanding of transitional trials.
First, I discuss critically their conceptualization of the relationship between
pedagogy and legality. I present the three accounts on transitional criminal
trials on a continuum whose extremes are occupied at one end by positions
conceiving of the relationship between legality and pedagogy as a zero-sum
game and, at the other, by authors claiming that it is inadmissible to trade off
legality for pedagogy. By ‘legality’ I mean the procedural rights of the
defendants as legal expressions of democratic equal concern. It is these
procedural rights that usually get sacrificed for the purpose of teaching lessons
through the law. I argue that preserving these safeguards implicitly affirms the
normative integrity of democracy and communicates a didactical message to
enraged populations. Legality need not and must not be sacrificed for the sake
of pedagogy. Only principled responses to oppression can have pedagogical
effects beneficial for democracy.
Secondly, the three authors under-theorize the objects of law’s pedagogy:
who is it that trials are supposed to educate? Transitional periods are usually
marked by heightened emotional mobilization against the perpetrators of
abuses. While resentment and indignation represent legitimate reactions to the
experience of injustice, how they get expressed publicly is the proper subject of
institutional concern. In order for democracy to flourish, institutions require
that citizens’ politically relevant sentiments not be manifested abusively. I argue
that exemplary judgements can contribute to the emotional socialization of a
democracy’s citizens by filtering their affective reactions through the strainer of
democratic values. Pedagogy need not be restricted to the teaching of
foundational narratives. Fair decisions can also inspire the development of an
inclusive sense of justice—directly for the victims and victimizers, and
indirectly within the wider citizenry. Running trials in a way that respects
procedural norms and shows equal concern to all can potentially catalyse the
emergence of a democratic emotional culture. By provoking an outraged public
to reflect on the judgements underlying their resentment and indignation,
15
The label ‘negative’ refers to these emotions’ association with displeasure and discomfort.
courts can channel these reactions in ways that make them compatible with
core democratic values.
The first section engages Lawrence Douglas’s narrative jurisprudence
approach to criminal trials in order to see what his account of law offers for
a political theory of transition. Next, I address Judith Shklar’s limited
endorsement of legalism during post-violence trials. Last but not least, I
discuss Mark Osiel’s theory about the relationship between procedurally correct
criminal trials and the development of a ‘discursive solidarity’ within the
community. The critical dialogue with these three authors will hopefully open a
niche for my contribution to theorizing the relationship between criminal
proceedings and politico-emotional socialization processes within periods of
dramatic democratic transformations.
2. Legal Didactics: Doing Justice to the Representation of Atrocity

Lawrence Douglas’s book The Memory of Judgment: Making Law and History in
the Trial of the Holocaust looks at the didactical function of the Holocaust trials.
Douglas’s main concern is with the didactic function of representing the event
of the Holocaust in legal form. The question his book is built around is: ‘Did
the trials do justice to the unprecedented crimes of the Holocaust? . . . To
answer this question, one must examine how a specialised legal instrument, the
criminal trial, was used as a tool of collective pedagogy and as a salve to
traumatic history.’16
Douglas’s interest lies with the pedagogy of truth, of revealing sobering
historical facts through the medium of penal law. From the perspective of
narrative jurisprudence—the view of jurisprudence he embraces—a capacious
understanding of law is necessary in order to understand how criminal trials
function as rituals producing and suppressing various stories about unprece-
dented atrocities. In view of illustrating his point, the author examines the
didactic use of evidence at Nuremberg and of victim testimony in the
Eichmann trial.17 His main goal is to reveal how these trials struggled to ‘show
the world the facts of astonishing crimes and to demonstrate the power of law
to reintroduce order in a space evacuated of legal and moral sense.’18
Douglas’s analysis of Nuremberg focuses on the filmic, documentary and
material evidence used for the purposes of writing the history of unprecedented
atrocities. Given a strong concern with the legitimacy of the proceedings, the
court’s actors opted for rigorous proceduralism. Framing charges in line with
existing international documents, avoiding victims’ testimonies, and replacing
16
Douglas (n 12) 2.
17
Douglas also dedicates an ample analysis to the failures of law to police the memory of the Holocaust in the
Demjanjuk and Zundel trials. For the purpose of this paper I shall focus on his analysis of the Nuremberg and
Eichmann proceedings.
18
Douglas (n 12) 3.
them with documentaries were strategies meant to pre-empt potential accus-
ations of victors’ justice. Because of these choices, the trial became a tedious
spectacle, marked only by sporadic dramatic episodes. Douglas claims that
Nuremberg’s potential pedagogical effect was thus sacrificed for the sake of
procedural rigour. He writes:
Yet in spite of the prosecution’s redoubtable efforts to document the Nazis’ campaign
to exterminate the Jews of Europe, these pedagogic efforts were importantly
compromised by the legal grid in which unprecedented atrocities were framed,
contributing to the serious shortcomings in the historical understanding of the
Holocaust that emerged from Nuremberg.19
Eichmann’s trial, on the other hand, did better in terms of teaching the lessons
of history. The prosecution’s efforts to tell the tale of heroic Jewish resistance to
the young Israeli generation took the form of unconstrained testimonies by
numerous victims. A lot of attention was paid to survivors and their feelings in
order to balance the disproportionate procedural protections for the defendant.
Historical instruction and the normative reconstruction of the nation were
prosecutor Hausner’s objectives. As these objectives were pursued through the
medium of the penal trial, Douglas claims that the proceedings successfully
stretched the law in order to understand and commemorate traumatic history.
In a very short treatment of the conception of law he embraces, Douglas writes
that ‘for rule-based formalism, questions of narrative are extralegal, while
narrative jurisprudence, by insisting that rules fail to exhaust the universe of
what counts as law, insists on a more capacious understanding of the legal.’20
According to Douglas, making sense of the didactic contribution of the
Eichmann trial requires that we incorporate extralegal variables into a flexible
perspective on the law’s functions and limits. From the point of view of
narrative jurisprudence, the Eichmann trial presented an accurate and
disturbing story only by virtue of transforming the role that criminal law can
play in the wake of violence:
[T]he Eichmann trial furnished a complete and exceptionally moving digest of the
Nazis’ campaign to exterminate European Jewry. Like Nuremberg, the trial
uncovered documents and material that have been the source of important scholarly
study. Yet in contrast to Nuremberg—and largely as a result of the prosecution’s
tenacious rebellion against the court’s formalism—the trial was able to ‘reach the
hearts of men’.21
Yet legality was not entirely forsaken as the prosecution’s efforts were tempered
by the vigilant judges. The court shared Nuremberg’s concerns with the
legitimacy of proceedings. Given that the trial was held on Israeli territory on
19
Ibid 66.
20
Ibid 112.
21
Ibid 177.
the basis of a law passed in 1950, and that the defendant had been seized in
violation of the principle of territorial jurisdiction, the Court struggled to keep
a veneer of legality by providing a counterweight to the accusers’ strategies.
Thus, they made a sustained effort to filter testimonies through the strainer of
relevance:
The court’s and the prosecution’s notion of legitimacy, however, differed importantly,
and nowhere was this disparity more visible than in the clash that erupted over the
relevance and meaning of the testimony of survivors of the Holocaust. The
court . . . sought to shield itself from the challenge of traumatic history by rigorously
defending legal form.
The prosecution, by contrast, saw the trial not simply as a means for adjudging the
man in the glass booth, but as a complex drama meant to demonstrate the law’s
power to support a project of normative reconstruction.22
Given his nation-building project, Hausner did not strictly select testimonies in
view of demonstrating culpability. Consequently, he put the judges in the
uncomfortable position of having to police the survivors’ testimony.
Douglas sees the court’s intervening to limit witnesses’ testimonies to what
was relevant for Eichmann’s case as necessary for securing procedural
legitimacy. However, by way of supplementing Douglas’s account, I argue
that, while Hausner did his best to teach history to the new generation of
Israeli citizens, the court was busy affirming the limits equal respect places on
the narrative uses of the law. In other words, while the prosecution focused on
doing justice to the event of the Holocaust, the judges could be seen as
affirming equal respect for persons by including under the scope of the sense of
justice not only the survivors, but also a defendant whose culpability had
otherwise never been in doubt. Moral outrage in the wake of the Holocaust
could not be denied voice, yet it had to target the particular victimizer
responsible for one’s suffering. Selecting testimonies that had nothing to do
with Eichmann’s crimes violated equal respect for all persons. Not all stories
and not all feelings, no matter how legitimate per se, could have standing in that
particular trial. The criterion of relevance places a limit on what can be
admitted. A message about the value of equal respect had to be communicated
to the public. This message certainly contributed to the legitimacy of the
proceedings. It also served another kind of pedagogy, a pedagogy that, because
of his opposing legality to historical narrative building, Douglas did not take
into consideration. The judges’ disqualifying the unrelated stories was a way of
teaching a lesson about how democracies deal with victimizers.
Therefore, even if we agreed with Douglas that rules do not exhaust the
realm of law, we need not agree that historical lessons exhaust the realm of
22
Ibid 177–78.
legal pedagogy. From his analysis of the Nuremberg and Eichmann
proceedings, it is clear that he does not see legality serving the cause of
pedagogy. For him pedagogy is concerned solely with historical accounts and
national narratives. By adopting this position Douglas is blind to the lessons of
procedural justice and their potential impact on the culture of respect for all.
This brings us to this paper’s second dimension of analysis, the subjects of
legal didactics. While Douglas clearly appreciates the prosecutor’s efforts to
offer young Israelis a substantive narrative and some nation-building myths, he
does not consider the ways in which procedural rigour could have educated the
political dispositions of its addressees, victims and victimizers, old and young.
There is no room in his account for the judges’ pedagogy targeting the
development of democratic attitudes in the wider audience. When he writes
that the testimonies in Jerusalem ‘moved the hearts of men’ he does not refer
to an education of the sentiments of the public, but to the spectators’ affective
reactions at learning about the extent and nature of atrocity. However, one
could also claim that the court’s effort to ensure the defendant would not be
easily instrumentalized was another way of talking to ‘the hearts of men’:
legality was meant to show the limits of what one can do in the name of
otherwise legitimate moral outrage against Eichmann. Given the immensity of
harm, the moral effervescence surrounding the procedures, as well as the
prosecution’s inflammatory orations, it would be difficult to believe that the
judges actually had an important pedagogical influence over ‘the hearts of
men.’ However, we cannot overlook the fact that, in exercising historical
reflective judgment, the court opted for defending legality as the best strategy
for publicly communicating the limits democracy places on public emotional
expressions.
Towards the end of his analysis of the Eichmann trial, Douglas writes:
This is not to suggest that the court’s defence of formalism was misplaced; on
the contrary, it was only because of the struggle between the court and the
prosecution that the trial could succeed both as law formally conceived and as a
didactic event.23
This concluding statement shows that there is no room for pedagogical legality
for Douglas. Legality and pedagogy necessarily get traded off against one
another. The Nuremberg and Eichmann courts’ efforts to impose procedural
rigour did not constitute a didactical move, but only a legitimizing strategy.
However, I argue that the didactical function of law gains in complexity by
exploring not only the substantive, historical messages that constitute founda-
tional myths for the trial’s audiences, but also the kind of political and
emotional socialization that legality can contribute to. It is this subtler, yet
23
Ibid 177.
crucial, contribution that legal pedagogy can bring to the development of

democratic attitudes.
3. Legalism as a Specialized Language
Having examined Douglas’s understanding of legality and didactics as inversely
correlated, it is time now to take one step towards the centre of the spectrum.
Judith Shklar’s classic book Legalism: Law, Morals, and Political Trials partly
acknowledges law’s pedagogical merits. However, her main aim is to use
political trials, both domestic and international, in order to reveal the
shortcomings of legalistic ideologies.
Shklar defines legalism as an ethical attitude, a code of conduct, a social
ethos and a political ideology. Its main presuppositions are: first, that moral
conduct is reduced to rule following; and second, that moral relationships
consist of duties and rights determined by rules. Two dichotomies are
cherished by its proponents—between law and morals and between law and
politics.24
With regards to the first dichotomy—between law and morals—legalism in
both its positivist and Natural Law versions cannot account for the role of law
within plural societies. On the one hand, positivism artificially separates law
from morals and treats both as isolated blocks. Shklar’s main point is that the
relation between the two is one of positions on a continuum, the difference
being between more or less legalistic polities rather than between law and
morals.25 On the other hand, Natural Law legalism presupposes a strong
normative agreement, unattainable under the current conditions of diversity. Its
emphasis on an ahistorical moral certainty can allow for repression of
dissenters, something unacceptable within a democracy.
Legalism’s second dogmatic separation, that between law and politics,
renders it incapable of recognizing law’s great creative force and the kind of
social functions it could perform at all times, but especially within transitional
moments. The ignorance of, or disinterest in, law’s social consequences argue
against this position.
Nowhere are legalism’s limits more obvious than in the handling of political
criminal trials. Shklar writes: ‘Both in accepting and in rejecting political trials
legalism strives valiantly to distinguish itself from ‘‘mere’’ politics, even such
politics as might well serve the future development of legal institutions and
values.’26
Instead of emphasizing the insulation of law from the ‘dirty’ politics, it would
be better to ask ‘What sort of politics can law maintain and reflect?’ Trials can
serve all sorts of politics, liberal and illiberal, legalistic or non-legalistic. Once
24
Shklar (n 13) 1–2.
25
Ibid 62.
26
Ibid 143.
we acknowledge that trials in the aftermath of large scale violence cannot
escape politics, we can also understand the need to think of the future social
goals law can achieve.27 Neither Natural Law theory nor positivism can help in
this sense. Shklar uses the Tokyo and the Nuremberg trials to show how both
variations of legalism have failed to achieve the social goods they could have
achieved for the Japanese and German societies.
The Natural Law arguments introduced in the Tokyo trials did nothing but
outrage Asians with their ‘narrowness, ethical dogmatism and historical
emptiness of the ideology of agreement’.28 Such arguments did not make
any sense outside the Western liberal environment where they had been
developed historically. As for positivism, had the prosecutors at Nuremberg
understood the educational impact that the trial could have had on the
immediate future of Germany, they would not have based their case on the
legal fiction of an existing international law and would not have gone to such
lengths to use domestic categories that clearly misrepresented the crimes.29
Such rigid strategies undermined the positive contribution that legalism could
have made to political change in Germany. The trial’s actors were more
concerned with the ‘grand’ future of the ‘Law’ rather than the German
people’s immediate future. By separating between law and politics, law’s
potential social role had been severely diminished.
To the extent that the Nuremberg’s obsession with formalism had any impact
on the democratic socialization of the Germans, it was on Germany’s
professional and bureaucratic classes, already formed within a legalist
tradition.30 The impact on the wider sectors of the German population was
very limited, if any. Prior education into legalistic virtues conditioned
receptivity to the lessons of Nuremberg. Had concerns with precedent been
relaxed, had ‘crimes against humanity’ been used as a category, the truth of the
novelty of Nazi crimes would have resonated with the broader German
population, claims Shklar.31 The legalist’s safe use of ‘crimes of aggressive war’
did not transmit any didactic message and opened the way for tu quoque
arguments to be raised against the allies.
Shklar’s understanding of the didactic function of trials can be summarized
thus: to the extent that a political trial respects the rigours of legalism, it can
teach legalist virtues, but only to those who have already been socialized to
respect such virtues, ie the legal and political classes. In order to reach the
wider public, legalist constraints must be loosened. Since the only justificatory
27
Shklar also analyses domestic political trials in the US. Given the focus of this paper, I shall exclusively look
at her treatment of the trials that followed the Second World War.
28
Shklar (n 13) 156–7. Because it does not touch directly on her critique, Shklar does not speak of the
problematic political selection of defendants in Tokyo. This, however, also undermined the legitimacy and effect
of the trial.
29
Shklar is referring to their use of the crime of ‘aggressive war’ instead of the category of ‘crimes against
humanity.’
30
Ibid 169.
31
Ibid 156.
goal of the great trials was a broader pedagogical impact, strict legality should
have been sacrificed.
This brings me to my first objection to Shklar’s conceptualization of the
relationship between legality and pedagogy. She seems to believe that success in
teaching historical lessons depends on the audience’s familiarity with the ways
in which the lessons are taught. Unlike Douglas, she sees an instrumental value
in legalism’s capacity to communicate historical truths to certain sections of the
public. The political and legal classes of Germany learnt the lessons about the
horror of the Holocaust because the stories were told in a language they
understood. This seems to be the only merit legalism could have in terms of
contributing to the political socialization of a trial’s audience.
In response to Shklar, I argue that it was liberal democratic politics that lay
behind Nuremberg’s preoccupation with precedent and non-retroactivity. The
court’s concern with its own legitimacy, with the credibility of the proceedings,
and with communicating that even the worst perpetrators had to be given
voice, was meant to send a didactic message to the world community. Liberal
democratic politics is inherently linked with a concern with legality: only those
judicial decisions that display equal respect for all, both victimizers and victims,
are permissible. Only by observing principled constraints could the Allies have
distinguished themselves from their opponents and aspired to have an
educational influence. The very fact that proceedings were initiated instead
of summary executions was meant to affirm that democracies deal differently
with the defeated. In this sense, the world community was the target of a
pedagogical effort to highlight the limits that democratic justice placed even on
the victorious in war.32 Legalism does not only have an instrumental function
in the transmitting of historical truths to lawyers and bureaucrats. It constitutes
in itself a certain kind of lesson.
As for legalism’s ignorance of social and political implications, to claim that
the prosecution and judges at Nuremberg were blind to the practical
ramifications of their choices is to misrepresent their self-understanding as
historical actors within unprecedented circumstances.33 Aware of the impact of
their acts on world history, the lawyers at Nuremberg reflectively judged that,
under the circumstances, the reproduction and affirmation of liberal demo-
cratic equality required excessive attention to procedural rigour.
Shklar sometimes hints that there is something commendable about the
politics that legalism can defend. She seems to believe that there is a
relationship between legalism and the level of ‘decency’ of a society and
between legalism and personal freedom. She also vaguely writes that legalism
is compatible with the worst oppressive politics, though not ‘in its most
32
Bass (n 5) makes a similar point when he writes that it is liberal democracies that are particularly concerned
with the organization of trials in the wake of violence and abuse.
33
For evidence of the political concerns behind the framing of the International Tribunal’s Charter see eg
Douglas (n 12), especially ch II.
extreme form.’34 These statements are, however, left under-theorized. What is
missing is an articulation of the fact that legalism’s ‘obsession’ with procedural
protection for both the defendant and the victims is the reflection of a guiding
principle of judgement within liberal democracies: the principle of equal
concern and respect for all. And though there can be excesses of
proceduralism, courts dealing with massive violence and oppression prefer to
err on the side of too much strictness rather than fail to show discontinuity
between liberal democratic politics and the abusive practices of the past.
Before raising my second objection to Shklar’s account, I want to respond to
a potential criticism about this paper’s embracing a romanticized reading of
Nuremberg as an apolitical exemplary trial. The reason I discuss Nuremberg at
all is that it has been considered by many scholars as a reference point when
thinking about the pedagogical potential of post-conflict trials. By critically
engaging with their accounts I want to show that their understanding of legal
pedagogy in the wake of atrocity is limited. I do not see Nuremberg as a model
for ‘correct’ transitional trials. Transitional trials are indeed political, yet there
are two meanings of the term we need to distinguish. First, a political trial
reflects a certain political ideology. In this sense, I argue that Nuremberg’s
concern with documenting atrocity and providing defendants with a set of
procedural protections reflected liberal democratic views. There was a strong
link between the Allies’ ideological commitments and their running of the trial.
Secondly, a political trial is an instrumentalization of the law for the sake of
eliminating political adversaries and this is naturally in tension with liberal
democratic norms. The Stalinist great purge in the late 1930s is one good
example and, no matter how critical we are of Nuremberg, the two examples
are not comparable. This is not to say that the Allies at Nuremberg were
exclusively motivated by noble principles. It would be a mistake to believe no
strategic reasons entered their calculations and that their respect for legality
was perfect.35 Yet these strategic aims did not collapse the trial into a political
one in the second sense delineated above, i.e. victors’ injustice. A healthy dose
of realism should prevent us from idealizing the proceedings at Nuremberg, but
at the same time appreciate its merits.36
The second point I want to raise in response to Shklar’s account refers to her
understanding of the impact trials can have on broader audiences. When
talking about the society at large as addressees of the court, Shklar sees the
trial’s influence simply as preventing a generalized bloodbath. The proceedings
34
Shklar (n 13) 145, 209, 220. Does Shklar think, with Lon Fuller, that there is an inner morality of the law?
The claim remains unsubstantiated. See L Fuller, The Morality of Law (Yale UP, New Haven 1973).
35
For example, no evidence about allied war crimes was allowed in court and the sentence raised many
concerns.
36
In a sense all transitional justice measures suffer from a tragic imperfection. While victors’ justice is
necessarily incomplete, it need not always degenerate into blatant instrumentalization of defendants for strategic
goals. It is however possible to mark discontinuity with the victimizers’ practices by diminishing arbitrariness and
living up to principles of equal concern for all.
against the Nazi war criminals removed justice from private forces and placed it
in the hands of the law:
The Trial fulfilled an immediate function which is both the most ancient and the
most compelling purpose of all criminal justice. It replaced private, uncontrolled
vengeance with a measured process of fixing guilt in each case, and taking the power
to punish out of the hands of those directly injured . . . The only consequence of
officially doing nothing would have been to invite a perfect bloodbath, with all its
dynamic possibilities for anarchy and conflict on an already disoriented continent.37
The terms in which Shklar describes this accomplishment of the Nuremberg
prosecution reveals that she does not see the prudential avoidance of unleashed
vengeance as part of the pedagogical function of the trials. She claims that the
trial was a ‘containment’ of vengeance, a suppression of ‘passions’. There is
nothing to be recuperated from these ‘passions’; they had to be done away with
in order to prevent the bloodshed. While Shklar’s claim that trials prevent
further violence is correct, her conception of vindictive passions misrepresents
the circumstances of justice in the wake of violence and leads to a reductionist
understanding of the trial’s resonance.
I argue that the trial sought to prevent further violence by sending a message
about what can be justifiably done in the name of otherwise legitimate public
resentment and indignation. Shklar’s treatment of passions does not do justice
to the judgments underlying the affective responses that develop in response to
injustice and atrocity. Negative emotional reactions to the suffering associated
with large-scale violence were more than legitimate. What the court tried to
communicate was that the lynching and extra-legal executions of suspected
collaborators and the shearing of women after the liberation38 were not
appropriate emotional expressions from the point of view of liberal-democratic
justice. Instead, resentment and indignation should target the real, not the
imagined, victimizers and not motivate actions that undermine the very
normative foundation of democracy: the value of equal respect and concern for
all. When left unfiltered institutionally under circumstances of high mobiliza-
tion, they had led to misdirected revenge. The court’s concern with procedural
protections was meant to inspire audiences to reflect on the kind of emotional
expressions democracies allow. They also sought to avoid giving the Nazi
leaders any good reasons to be resentful.39 Shklar’s conceptualization of the
37
Shklar (n 13) 158.
38
For a variety of extra-legal justice mechanisms in the aftermath of the Second World War see P Vermeylen,
‘The Punishment of Collaborators’ (1946) 247 Ann Am Acad Pol Soc Sci 73–7; H Rousso, ‘L’épuration en
France: une histoire inachevée’ (The Purge in France: Unfinished Business – my translation) (1992) 33
Vingtième siècle 78–105; F Virgili, Shorn Women: Gender and Punishment in Liberation France (Berg Publishers,
Oxford 2002).
39
By giving even the most terrible abusers a voice and the benefit of legal protections the actors at
Nuremberg hoped to make defendants understand the gravity of their deeds in a way that did not give them
sound reasons for feeling resentful. While this desirable effect is contingent, fair procedures clearly mark
discontinuity with the past of arbitrariness.
role of criminal law as containing and suppressing ‘vindictive passions’ prevents
her from seeing the subtler pedagogical implications of Nuremberg’s opting for
strict procedural constraints.40
4. Transitional Criminal Trials as Theatres of Ideas:
Towards Didactic Solidarity
Mark Osiel dedicates his book Mass Atrocity, Collective Memory and the Law to
offering an alternative to the Durkheimian account of the relationship between
criminal law and solidarity in the aftermath of ‘administrative atrocity’. The
term ‘administrative atrocity’ refers to ‘large scale violation of basic human
rights to life and liberty by the central state in a systematic and organised
fashion, often against its own citizens, generally in a climate of war—civil or
international, real of imagined.’41 State-sponsored atrocity poses specific
problems for the new elites, working without the support of a democratic
political culture. It is Osiel’s contention that criminal trials of perpetrators can
contribute to the beneficial development of a modicum of social trust and
solidarity within deeply divided societies. By contrast to Durkheim who
thought legal proceedings drew on a societal normative consensus,42 Osiel
proposes a thin understanding of solidarity, one reduced to the endorsement of
equal respect for different viewpoints. The high number of competing
interpretations of the past that usually characterize post-conflict circumstances
make Durkheim’s account implausible. However, by stimulating public
discussion about the meaning of violence, criminal trials can promote liberal
democratic virtues: toleration, mutual respect and habits of reflection.43 The
rules of criminal procedure and of responsibility in the legal profession can
encourage civility. The actual experience of being part of adversarial
proceedings could contribute to the development of ‘discursive solidarity.’ A
certain level of self-conscious dramaturgy by prosecutors and judges is
necessary for stimulating the development of ‘discursive solidarity’:
Legal proceedings produce a different kind of solidarity, founded on a different basis.
The proceedings are founded on civil dissensus. They produce the kind of solidarity
40
A question still remains about the German population’s legitimate resentment at Allies’ war crimes. The
Allies’ bombing of German cities late in the war gave rise to legitimate negative feelings on behalf of the victims.
While many efforts have been recently made by historians to critically engage this issue, the magnitude and the
different nature of the Nazi atrocities has been obscuring the complexity of the moral wrongs committed by both
sides. By not allowing tu quoque criticisms during the Nuremberg proceedings, this issue was silenced. The fact
that the Allies also committed war crimes does in no way diminish the German leadership’s culpability.
Nevertheless, it points to the legitimacy deficits and to the regrettable use of double standards within political
processes of dealing with political atrocity. Unfortunately, this limitation currently mars the record of the
International Criminal Court where all defendants come from African countries. See ICC’s cases web page
<http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Cases/> accessed 3 June 2010.
41
Osiel (n 14) 9.
42
He uses Durkheim’s Division of Labour in Society. See E Durkheim, The Division of Labour in Society (Free
Press Collier Macmillan, New York, NY 1964).
43
Osiel (n 14) 9.
embodied in the increasingly respectful way that citizens can come to acknowledge
the differing views of their fellows.44
Yet, in contrast to Douglas and Shklar, Osiel argues that legality need not be
sacrificed for pedagogical ends. It is only by conducting transitional trials in a
way that at the same time provides a public spectacle and preserves legality that
courts could help shape the political culture of the polity. The shattering of a
rather widely shared assumption of the tension between legality and pedagogy
is one of Osiel’s main objectives. This assumed tension is the first of six
potential theoretical and practical obstacles he seeks to overcome in his book. A
fuller image of his theory emerges from his critical engagement with these six
counter-arguments. This section will follow Osiel in his constructive presen-
tation and then evaluate his account through the lens of the theoretical
framework this paper seeks to sketch.
As mentioned above, the first puzzle Osiel tries to solve is a hypothesized
tension between liberal concern for legality and the pedagogy of criminal trials.
He claims that the answer to this question depends on the kinds of lessons that
are taught by the trial. There need not be a tension between legality and
pedagogy because ‘[L]iberal show-trials are ones self-consciously designed to
show the merits of liberal morality and to do so in ways consistent with its very
requirements,’45 and ‘a liberal state may employ a ‘‘show trial’’ for administrative
massacre to display the horrific consequences of the illiberal vices and so to
foster among its citizens the liberal virtues (including respect for basic human
rights, deliberative capacity and toleration)’.46
It is by cultivating and rewarding virtues of mutual respect, self-reflection
and toleration that trials can contribute to normative and social change. The
disposition to respect the moral rights of the others figures as the main
objective of political socialization. This requires that legality not be violated, as
it is the very norms of criminal procedure that can inspire a respect for civility
in the trial’s audiences. Only by exemplarily observing the rights of the
defendants and victims can such proceedings resonate with mobilized outraged
societies.
The second counter-argument Osiel discusses states that the pedagogical use
of trials is likely to distort history. The author acknowledges that one could
conceive of transitional trials as caught between a too narrow perspective—that
of simplifying formalism—and a too wide one—that gives in too much to
historical narrative-building. But these risks should not lead to discarding
pedagogy as a goal of transitional trials. On the contrary, law should use the
stories that come before it in order to persuade its audience of the merits of
44
Ibid 22–23.
45
Ibid 65. Emphasis added.
46
Ibid 67.
civility and respectful attitudes. Living up to the principle of equal respect also
requires that this should not be done at the price of silencing alternative
narratives:
On this account, courts may legitimately tailor the stories they tell in order to
persuade sceptical publics of the merits of liberal morality. But they may not exclude
incompatible stories from public hearing. Prosecutors and judges can strive to make
the liberal story about these events more persuasive than its alternatives, yet cannot
suppress them. In fact, the discursive view requires effective public presentation of
counter-narratives in order to have any chance of refuting them, were they
inconsistent with the liberal one.47
More concretely, Osiel envisages criminal trials as theatres of ideas. While the
prosecution will choose the style of an accusatory moral drama and the defence
that of a tragedy, he thinks judges should encourage the format of a theatre of
ideas whereby alternative narratives compete to persuade the audience. It is his
view that the superiority of the morality of equal respect will become apparent
when contrasted with the alternatives.
The third challenge to the discursive solidarity model points to another
dilemma associated with the didactic use of law: that of being tempted by too
much reeling in the past on the one hand, and by too little engagement with it,
on the other. There is an easy way out of this dilemma for the discursive
solidarity conception of criminal trials. First, judges and prosecutors should be
honest about the limits of the law in accounting for historical violence. Second,
they should make sure victims do not have an exclusive right to speak. Victims
should not have monopoly over the past. A society-wide debate could prevent
the slide into an obsessive looking back. The courts’ role is precisely to
stimulate a discussion about how prominently the episodes of oppression
should figure in the polity’s self-understanding.
The fourth question Osiel has to answer is whether criminal trials can help
the cause of national reconciliation. The theorist thinks trials can accomplish a
different goal than national reconciliation: by forcing unpleasant topics on the
public agenda the trial can induce moral self-scrutiny among the citizens and
the emergent elite, even if it fails to do this for perpetrators and their
sympathizers. The question the legal profession must ask itself is not ‘How can
trials achieve reconciliation?’ but ‘How can the criminal law be most effectively
deployed, through the dramaturgical choices of prosecutors and judges to
foster national self-searching of this sort—to stimulate the deliberative criticism
of a society’s political culture and institutions by its members?’48
47
Ibid 141.
48
Ibid 176.
Fifthly, Osiel feels he needs to account for how law can deliberately
contribute to norm change:
The law’s proper role will be to stimulate a candid discussion of just what these
shared norms are, or should be. Solidarity emerges both insofar as agreement is
reached in this regard, and also—insofar as it is not—through the very process of
discursive engagement over the question. A memorable courtroom telling of the tale
of recent horrors can be an effective means to both these ends.49
The success of deliberate efforts to stimulate public debate is contingent on a
multitude of variables. However, some strategic decisions meant to increase the
proceedings’ didactical impact should be taken into consideration.
Lastly, the sixth potential objection Osiel takes up is the following: granting
that the deliberate education of civic attitudes is possible, must the judges’
intentions be kept away from public view in order for such strategies to be
successful? To this question the author gives a definite ‘no’ answer. While there
is a lot of room for prosecutorial discretion in choosing didactical elements that
do not contravene legal integrity, prosecutors should strive to justify publicly
every step they take.
So far, not much has been said about how the spectacle of justice could be
framed so as to provoke a lively debate within society. It is clear that law
advances this purpose ‘by ventilating and addressing disagreement rather than
concealing it’.50 But what exactly does that mean?
To cultivate memory in the aftermath of administrative massacre requires that courts
treat easy cases as if they were hard ones. This is because legal concepts and doctrines
will often have lost their normal connection to the underlying moral and political
issues at stake. This means that judges must allow both prosecutors and defence
counsel to paint with a broader brush (as they have demonstratively done, in any
event), to widen the special and temporal frame of the courtroom storytelling in ways
that allow litigants to flesh out their competing interpretations of recent history, and
to argue these before an attentive public. Only in this way can the debate within the
courtroom be made to resonate with the public debate beyond the courthouse
walls.51
Sometimes, the prosecution’s position would be weakened. Yet the increased
credibility and legitimacy of the trial will be strengthened. While legality should
not be sacrificed for the sake of pedagogy, a certain kind of rigid positivistic
formalism is disqualified as an approach to criminal proceedings in the
aftermath of administrative atrocity:
By simply applying ‘the rules laid down,’ without extended discussion and defence of
the principles on which they rest, formalist approaches to judicial process shut off the
49
Ibid 210.
50
Ibid 283.
51
Ibid 296.
very discussion that is most needed, when judging the conduct of those who do not
share the law’s assumptions. Formalist judging assumes widespread societal agree-
ment on fundamentals already exists, when agreement at such times is conspicuously
absent, and when steps towards its construction—through reasoned debate and
persuasion—are so imperative.52
Because societies in the wake of violent oppression are divided over the past,
because attitudes of civil respect and concern for all are not present within such
contexts, because courts can contribute their share to the future of a
democratic political culture, a strict formalist approach cannot be the
answer. Ample space should be given to explaining why it is that all relevant
stories need to be heard. Only in this way can courts fulfil their didactic
function.53
This does not mean that courts will relax procedural protections or that
some agents will be instrumentalized for the sake of the common good of
developing deliberative attitudes. Violating rights during the proceedings will
not serve Osiel’s socialization ambitions. What is needed, though, is more room
for telling alternative stories about the past, in the hope that wider public
debates will take their cue from the conversations taking place in court.
‘Slam-dunk’ sentencing, even in cases where guilt is beyond doubt, will not
achieve much by way of stimulating a culture of democratic civility. This is
why, Osiel thinks, attention to procedure needs to be supplemented by
strategies for opening the discussion about who ‘we, the people’ are and want
to be in the future.
Osiel’s approach is best equipped to see both the subtler ways in which
transitional trials can serve the purposes of political socialization. What is
more, his account does not require sacrificing defendants’ procedural rights for
the purpose of transmitting educational messages. On the contrary, the very
nature of the educational message—the encouraging of reflective, dialogical
attitudes within the citizenry and not the sanctioning of a certain version of the
past—requires that procedural protections and relevance filters to be in place.
As institutional embodiments of the principle of equal concern for all, they
ensure that all voices get representation. In the end, it is the most persuasive
story that wins the day. The court should just make sure no relevant account
gets silenced and that the merits of the liberal one are presented in their best
light.
Osiel’s theorized purposes of legal pedagogy converge with the purposes I
envisage for transitional justice mechanisms. However, I find his take on the
circumstances of justice in transition wanting. More precisely, the parties
involved in such trials, as well as the broader audiences, do not come readily
receptive for the lessons the court is preparing to teach. There is one more, the
52
Ibid 298.
53
Ibid 300.
seventh, obstacle that Osiel needs to overcome: the emotional mobilization by

victims and the society at large against the oppressors, real or imagined. Before
they can hope to stimulate democratic respect, the judiciary must first face
resentful victims and indignant societies. The last section of this paper will
build upon Osiel’s work in order to provide an account of just what it is that
trials can do to constructively engage negative public emotions so as to foster
‘discursive solidarity’.
5. Engaging Negative Emotions: Transitional Trials and their

Contribution to a Democratic Public Culture
While Osiel correctly characterizes the social context within which transitional
justice mechanisms function as one divided between alternative versions of the
past, he does not see that these divisions are extremely virulent especially
because of the emotional mobilization sustaining them. In this section I add an
affective dimension to the circumstances of transitional justice and thus take
Osiel one step further in the attempt to develop a theory of legal didactics for
polities facing their unjust past.
There is a large body of literature theorizing the role of emotion in legal
decision-making. Evidently, of all branches of law, penal proceedings have been
privileged in terms of the amount of time theorists have spent analysing the
role of affect. In a review of the ‘law and emotions’ movement, Terry Maroney
identifies six approaches scholars have taken, theoretically and empirically, to
this issue.54 The first, ‘the emotion-centred approach,’ focuses on one
particular emotion and analyses how it is, or should be, reflected in the law.
Second, the ‘emotional phenomenon approach’ describes the mechanism
behind the formation of an emotion and explores how it is represented in the
law. Thirdly, ‘the emotion theory approach’ examines how a certain theory of
emotion guides, or should guide, legal practice. Fourthly, a ‘theory-of-law
approach’ focuses on the theories of emotion already embedded within a
certain legal theory. Lastly, the ‘legal actor approach’ looks at how a particular
legal actor’s performance is, could be or should be influenced by the presence
of emotion. The critical point of Maroney’s typology is that a successful
engagement with the issue of affect in penal law needs to combine these
approaches:
Thus, academic inquiry into the intersection of law and emotion should (1) identify
which emotion(s) it takes as its focus; (2) carefully distinguish between those
emotions and any implicated emotion-driven mental processes or behaviours; (3)
explore relevant and competing theories of those emotions’ origins, purpose or
functioning; (4) limit itself to a particular type of legal doctrine of legal
54
TA Maroney, ‘Law and Emotion: A Proposed Taxonomy of an Emerging Field’ (2006) 30 L Hum Behav
119–42.
determination; (5) expose any underlying theories of law on which the analysis rests;
(6) and make clear which legal actors are implicated. While the respective weight
given to each approach will vary according to the nature of the project, each choice,
and those choices’ unique combination, ideally should be considered, explained, and,
to the extent possible, justified.55
In what follows I shall try to sketch my account of emotional pedagogy through
transitional trials around Maroney’s criteria for a good theoretical engagement
with the role of emotions in law. While some elements will have become
apparent from the critical dialogue with the three authors presented here, it is
now time to systematize my proposal. This article is interested in the negative
emotions of resentment and indignation as expressions of a sense of justice (1).
Such reactions against the perpetrators of human rights violations usually form
an integral part of transitional contexts and, more often than not, place special
burdens on the fragile, democratic institutions. As expressions of a sense of
justice, resentment and indignation are responses to injustices against oneself
or another. They imply claims of redress which, left unattended, can either
erupt violently or degenerate into apathy and other socio-psychological
pathologies (2). I argue that the lens most appropriate for examining them is
a cognitivist lens, one that presupposes an essential role for judgement in the
morphology of affect (3). This is in line with criminal law theory’s having
overcome the long-standing opposition between emotions and reason through
the incorporation of more sophisticated findings from social and natural
sciences.56 Conceptualizing negative emotions as presupposing an evaluative
dimension gives them normative weight and makes them a proper object of
concern for democratic institutions. A commitment to equal respect for all
requires that they not be suppressed, but that they be given voice within
officially sanctioned venues, including transitional criminal trials. However, at
the same time, not just any form of emotion will receive recognition.
Resentments and indignation must target the true victimizers and must not
lead to acts that violate equal respect. While acknowledging the appropriate-
ness of moral hatred as a marker of a capacity to recognize injustice, courts
must also engage it pedagogically in order to make it compatible with core
democratic principles.57 Such emotions legitimately communicate a demand
that equality between victims and victimizers as persons and citizens be
reaffirmed institutionally. They must not, however, seek to affirm the victim’s
55
Ibid 134. Author’s listing.
56
In their seminal contribution, Dan Kahan and Martha Nussbaum claimed that a mechanistic conception of
emotion—one that placed emotion outside of rational control by the agent—had to give way to an evaluative
conception, one that gave judgement an important role in the morphology of emotion. See D Kahan and M
Nussbaum, ‘Two Conceptions of Emotions in Criminal Law’ (1996) 96 Colum L Rev 269–374. Another crucial
piece for this movement is S Bandes (ed), The Passions of Law (New York UP, New York 1999). A whole issue of
Law and Human Behavior was dedicated to the topic: (2006) 30.
57
While some efforts have been made to incorporate a victim’s perspective into the proceedings of the ICC
and the ad hoc courts for Rwanda and FRY, there is still a bitter sense of the lack of ownership over justice by
those who have suffered most. For illuminating articles on this issue see Stover and Weinstein (n 9).
superiority over the defendants. The individuals’ sense of justice must be

stretched to cover all members of the democratic community; victimizers must
not be instrumentalized for the sake of satisfying victims’ moral hatred. A
constructive engagement with emotions is a first step towards the cultivation of
equal respect. This is a subtler aspect of the legal education of attitudes, one
none of the authors discussed in this paper explores.
The theory of legal determination embraced here conceives of procedural
protections as expressions of a democratic principle of equal respect for all (4).
Courts express a commitment to this principle by ensuring that victims’
suffering is recognized and that procedural safeguards are provided to the
defendants. More concretely, it is necessary to publicly defend the principles
on which the court runs the proceedings. Justifying prosecutorial decisions
every step of the way is another requirement of treating everyone, including the
defendant, with equal concern. Keeping victims informed about their role in
the proceedings, as well as the schedule and aims of the proceedings, providing
them with assistance before, during and after the trial are guidelines that the
victims’ movement promotes and which make particular sense for contexts of
atrocity.58
At the same time, provoking reflection through exemplary judgement is
crucial. Good decisions can inspire citizens to ponder over what they want to
do in the name of their moral outrage. With Robert Solomon, this author
maintains that ‘the point of law is to make the passions more coherent, more
consistent, more articulate, more perspicacious, more reasonable, more subject
to scrutiny, more scrutinised.’59
Beyond these general ideas about how to foster respect for all by the careful
staging of criminal proceedings, judges and prosecutors within transitional
contexts will have to make decisions while taking into account a host of
political, social and institutional variables (5). Most likely, these variables will
limit the kind of impact law might have on democratic transformations. At the
same time, a non-romantic view of the judicial branch should make us cautious
of the kind of motivations that might lie behind the judges and prosecutors’
approaches. Courts might also be moved by pragmatic concerns with gaining
58
Victimology as a field dates back to the 1970s. For a review of the developments in this literature see H
Joachim Schneider, ‘Victimological Developments in the World During the Past Three Decades: A Study of
Comparative Victimology’ pts I and II (2001) 54 Intl J Off Ther Comp Crim 449–68 and 539–55 respectively.
For arguments for and against incorporating a wider role for the victim within criminal trials see E Erez, ‘Victim
Participation in Sentencing: Rhetoric and Reality’ (1990) 18 J Crim Just 19–31; S Bandes, ‘Empathy, Narrative
and Victim Impact Statement’, (1996) 63 U Chi L Rev 361–412; I Edwards, ‘Victim Participation in Sentencing:
The Problems of Incoherence’ (2001) 40 Howard J 39–54; A Crawford and J Goodey (eds), Integrating a Victim
Perspective within Criminal Justice (Ashgate, Aldershot 2000); J Nadler and MR Rose, ‘Victim Impact Testimony
and the Psychology of Punishment’ (2002–03) 88 Cornell LR 419–56; RC Davis, ‘Victims Rights and New
Remedies: Finally Giving Victims Their Due’ (2008) 24 J Contemp Crim Just 198–208. For an account of
victims’ frustration with transitional justice trials see E Stover, ‘Witnesses and the Promise of Justice in the
Hague’ in Stover and Weinstein (n 9) 104–20.
59
R Solomon, ‘Justice v Vengeance: On Law and the Satisfaction of Emotion’ in Bandes (ed) (n 56) 123–48,
129.
international support, or by an interest in the strategic entrenchment of their
power domestically. They may even act as endangered elites trying to make it
more difficult for the future administrations to hold them accountable.60
Hopefully, they will (also) be motivated by concerns with human dignity as an
inalienable status and with the norm of equality before the law. However, one
cannot deny that, in spite of the less noble reasons that might prompt the
judges to act, the outcome of their performing these functions can be beneficial
for the reproduction of the normative and institutional order. On its own, the
presence of strategic reasons does not undermine the validity of the pedagogical
effort.
Lastly, this author sees victims’ and their families’ resentment and indigna-
tion as the immediate objects of legal pedagogy (6). The spectators can also be
brought under the court’s direct influence. The broader society represents the
indirect audience of the court’s educational message. The efficacy of this
message depends on the collaboration of other institutions, the transparency of
the decision-making, respecting publicity, exposure in the media and public
responsiveness.
To conclude, this article has hopefully shown that a careful analysis of the
emotional dimension of transitional justice refines the way in which we
understand the functions of didactical legality. Failing to pay attention to the
affective circumstances of justice diminishes the contribution courts could
make to the cause of democratization. Yet democratic principles do not offer
formulae for legal actors to follow in engaging emotions. Principles guide
judgement, but do not determine it. How courts interpret the law in order to
engage resentment and indignation and teach equal respect depends from one
society to the other, from one legal tradition to the other, from one transition
to the other. This article sought to offer some minimal guidelines—yet no
recipes—for their orientation. Given the uniqueness of each and every
transition, it would be difficult to provide more precise instructions for law’s
engagement with emotions. Osiel’s guidelines, supplemented with the recom-
mendations included in the last section of this article could orient courts’
judgment towards a correct appreciation of the need to engage public affect
pedagogically. In the end, decisions about who, how and when to try remain
contextually determined.
60
For an account of the constraints met by courts during democratization periods see L Epstein, J Knight and
O Shvetsova, ‘The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems
of Government’ (2001) 35 L Soc Rev 117–63. Also, for more sceptical accounts of judicial motivation see O
Kirchhheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton UP, Princeton, NJ 1961); J
Zalaquett, ‘Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies
Confronting Past Human Right Violations’ (1992) 43 Hastings L J 1426–32; A Moravcsik, ‘The Origins of
Human Rights Regimes: Democratic Delegation in Post-war Europe’ (2000) 54 Intel Org 217–52; R Hirschl,
‘Juristocracy—Political, not Juridical’ (2004) 13 Good Soc 6–11 and Towards Juristocracy: The Origins and
Consequences of the New Constitutionalism (Harvard UP, Cambridge, MA 2004).

Socializing Negative Emotions: Transitional Criminal Trials in The Service of Democracy

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Socializing Negative Emotions: Transitional Criminal Trials in The Service of Democracy

Uploaded by

Copyright:

Available Formats

Oxford Journal of Legal Studies, Vol. 31, No. 1 (2011), pp.

Socializing Negative Emotions:

Abstract—This paper seeks to contribute to the field of transitional justice by

Keywords: transitional justice, criminal trials, emotions

building of memorials and exhumations.2 While transitional justice is an old

2. Legal Didactics: Doing Justice to the Representation of Atrocity

crucial, contribution that legal pedagogy can bring to the development of

seventh, obstacle that Osiel needs to overcome: the emotional mobilization by

5. Engaging Negative Emotions: Transitional Trials and their

superiority over the defendants. The individuals’ sense of justice must be

You might also like