On structural injustice,reconciliation and alienation

ABSTRACT

In Justice and Reconciliation in World Politics, Lu argues that justice and reconciliation are analytically distinct but both needed after political catastrophes like colonialism. I argue that Lu’s compelling reconceptualization of reconciliation precisely shows the contrary by making the project of reconciliation indistinguishable from the task of realising structural justice and that we should reject the language of reconciliation in some contexts. Moreover, I contend that, in an important sense, alienation (i.e., the wrong that, according to Lu, reconciliation aims to tackle) must be generated to move towards a structurally just world. Indeed, the project of creating a structurally unjust order does require the alienation of agents from the existing background conditions of their actions.     

How many truths are there? Reconciliation and agonistic dialogue in the former Yugoslavia

ABSTRACT

In this paper, we offer a possible interpretation of reconciliation in the former Yugoslav area. In a conflicting past and not-reconciled region, it is presumed that the truth should be the main pillar of reconciliation. However, according to our empirical analysis of 146 reconciliation projects implemented in the period between 2002 and 2015, there are many interpretations of truths in the region which are opposed to each other. These interpretations are the result of different national political constructions, supported by the dominant structures of the societies in question. Accordingly, instead of insisting on a single factual truth, we propose the introduction of the ‘agonistic dialogue’ principle, where multiple truths would coexist, thus turning former war enemies into political adversaries in the post-conflict setting.     

Understanding the Journey to Reconciliation in Transitional Societies: Using the Metaphor of a Motor Vehicle Road Trip to Understand South Africa's Path (Process) to Political Reconciliation

ABSTRACT

This article, using the metaphor of a motor vehicle road trip, explores South Africa's much-lauded and deftly exported transitional experiment. It explores how the journey, and process of reconciliation, was a prominent feature of the post-1994 transition. It is argued that the journey did not begin in 1994. It began way before. While the main journey began after the democratic elections, many preparations were done before that. Thus, the time period, the route chosen, those in the vehicle, those on the pavement and their role as well as issues such as places visited, the way the journey was eventually accepted, and how various people and institutions, including the Truth and Reconciliation Commission, assisted in the process will be examined. The article argues that nation building and reconciliation in South Africa were processes or journeys; not events. The journey had many facets, all of whic contributed to the project as a whole.     

Living Beyond Apartheid: The Territorial Ethics of Reconciliation

This essay explores the ethical murkiness of interpersonal reconciliation in the post-liberation era, focusing on the problem of material, and specifically territorial, restitution—an aspect of justice which critics say was the missing component of the Truth and Reconciliation Commission. A reading of J.M. Coetzee’s Disgrace alongside Bessie Head’s A Question of Power offers a window into the knotty relationship between reconciliation and redistribution, a relationship which, these novels insist, must be accounted for in reassessing directions for the future and defining new political horizons. Theories of post-apartheid interpersonal ethics, this essay argues, are incomplete and unachievable without a territorial dimension. While Coetzee shows territorial demarcations to be the silent shaper of human interaction and a constant snag in the fabric of the “new” South Africa, Head goes outside the boundaries of the apartheid state to envision the ethical restructuring of human relations through transformative practices of cooperative farming. While ethics is fundamentally about a relation to the other, these novels suggest that land distribution must be factored into the interpersonal equation.     

The invisible/visible claims to justice: sexual violence and the university camp(us)

If the relationship between international tribunals and reconciliation remains empirically under‐researched within the transitional justice literature, this is even truer in respect of hybrid and local courts. Seeking to address this gap, the purpose of this article is to explore whether the State Court of Bosnia and Hercegovina (BiH) – and more particularly its War Crimes Chamber (WCC) – can contribute to reconciliation in BiH. Unlike the International Criminal Tribunal for the Former Yugoslavia (ICTY), the State Court is located in the country itself. Hence, in theory at least, it has greater potential to involve local people and thus to facilitate the reconciliation process. In practice, however, the Court faces many of the same problems as the ICTY, including perceptions of bias and the difficulty of satisfying victims. What this ultimately demonstrates is that criminal trials are not a panacea or “magic bullet” and that reconciliation – both in BiH and in post‐conflict societies more generally – requires a comprehensive and holistic approach to transitional justice that does not over‐rely upon the administration of retributive justice. The State Court, therefore, is merely one potential path to reconciliation.     

对轻伤害案件刑事和解的思考——以新刑诉的实施为背景

轻伤害案件是一种多发性刑事案件类型,但轻伤害的特殊属性使得轻伤害案件的处理方式呈现多样性,即和解贯穿于自诉与公诉的过程之中。刑事和解作为处理轻微刑事案件的一种新生制度在我国已经实践多年,新颁布实施的刑事诉讼法将其作为一种特殊程序进行单独规定,是对轻伤害案件和解的实践总结。但此规定是否完善,值得探讨。     

刑事和解中当事人诚信问题分析

刑事和解提议之时和刑事诉讼处理结果形成之时是刑事和解程序中诚信危机的两个关键节点,由此可以将刑事和解程序大致划分为三个时段.刑事和解中当事人失信行为的成因与失信问题的防范应该结合关键节点和时段进行,通过制度约束特别是和解程序内的制度机制促成诚信、防控失信.     

理性建构中国刑法私法化之路

过于注重惩罚的公法建构,虽使刑法满足了预防犯罪的需要,但却漠视了被害恢复的积极价值。随着恢复正义理论的异军突起、社会效果的日渐重视以及私法精神对正统刑法的反攻,刑法私法化模式逐步成型:因刑事和解与二元化犯罪模式能够实现恢复被害和预防犯罪之双重目的,已成为当代刑法私法化的基本类型。其中,固守国家对犯罪治理的垄断,明确基本类型及其适用对象,把刑法谦抑作为判断基准,就是理性建构中国刑法私法化的基本路向。     

死刑案件中刑事和解的正当性探究

刑事和解与刑法理论相契合,与法治环境相融合,与多元化的利益需求和和谐社会的构建相吻合,并与刑事附带民事诉讼制度以及刑事被害人国家补偿制度存在功能上的互补。据此,刑事和解制度具有普遍正当性。死刑案件中的刑事和解与＂以钱买命＂存在的本质区别决定了二者不能混为一谈。刑事和解与司法腐败没有必然联系。刑事和解是限制死刑适用的有效途径。＂重罪不和解＂的观念存在正当性缺失。据此,死刑案件中的刑事和解具有特殊正当性。在刑事和解制度被法律明文规定之前,死刑案件中的刑事和解应被视为限制死刑适用的酌定量刑情节。     

试论刑事和解的适用阶段

刑事和解是近几年法学界最热门的话题之一,并在学界引发诸多讨论,实务界也取得了不少成果,但在其适用阶段方面,尚未取得一致的见解。综观刑事诉讼的全过程,审查起诉阶段和审判阶段均可适用刑事和解,但诉讼阶段不同,对刑事和解的最终结果产生的影响亦不同。