Law and Society in Transition: On the Normative Integration of World Society

Fatima Kastner

(Last modified September 2012)

Since the mid-1980s, societies that have been confronted with a bloody past attempt to come to terms with their history through truth and reconciliation commissions. Over a period of nearly thirty years, more than fifty such cases have been counted in many countries of Latin America, Africa, Central and Eastern Europe, and currently in an Arab-Islamic country (Morocco). The affected post-conflict societies have not called on national or international criminal courts to deal with past injustices but have instead relied on truth and reconciliation commissions. Around the world, we can observe the phenomenon that a non-judicial form of conflict resolution, a collective reworking of injustice in the sense of "restorative justice" with the societal objective of achieving reconciliation and forgiveness, is favored over rigorous, judicially organized mechanisms of criminal justice administration.

The global proliferation of this instrument for dealing with a violent past, which rather than utilizing the law relies on a quasi-religious "court theater of pardon" as a means of coping with injustice, not only changes a society’s perspective on its own past and the collective mode of remembering it but also opens a global space of legitimacy and validity for genuinely Christian-religious semantics, which these did not previously occupy.  

But what do forgiveness and reconciliation mean? Why are perpetrators forgiven and people reconciled in the "language of Abraham" (Jacques Derrida) in entirely different conflict situations around the world and in the most varied socio-political, ethnic, cultural, and religious contexts? Who asks for forgiveness? And who allows reconciliation?

Such questions go to the core of wide-ranging, controversial discussions being conducted, under the heading of "transitional justice", from the perspectives of various disciplines and theories within the context of ongoing debates on conflict, peace, transition, remembrance, commemoration, and the process of coming to terms with the past.

What all these perspectives have in common is their analytical focus on profound turning points in society, since in post-conflict societies the present situation is usually the result of recent collapse. Social interaction is in fact shattered and characterized by destroyed institutions, violence, mistrust, and moral decline. But this narrow focus on system breakdown and the concurrent perception of truth and reconciliation commissions as a tool resorted to when state-guaranteed justice administration is strained or has collapsed fails to recognize that even well-organized states at central hubs of world society, such as the United States, Germany, Australia and Canada, use this instrument.

This observation highlights the universality of a central problem that is apparently resolved with the help of truth and reconciliation commissions. Do truth and reconciliation commissions in fact constitute today’s universal model of conflict resolution in world society? Do they extend or undermine the global (criminal) justice system? Which problems are societies responding to when they establish truth and reconciliation commissions? What is the specific function of these commissions?

Based on these questions and drawing on the world polity theory proposed by the Stanford school of thought headed by John W. Meyer and on Niklas Luhmann’s world society theory, the project investigates the socio-structural dynamics and mechanisms that have led to the transnational diffusion around the world of semantics, norms, standards, and institutions for coming to terms with the past.

On the basis of empirical evidence, specific actors, institutions, and propagators can be identified who contribute to this world societalization process as the translocal agents who set norms. The study is founded on the assumption that as a result of societal and legal transformations, national policies for remembrance and dealing with past injustices are becoming increasingly synchronized. This hypothesis will be tested by examining the current social transition process in the Kingdom of Morocco. The objective of the study is to describe the complex coupling and decoupling relationships between a world culture of remembrance, reconciliation and dealing with injustice that is aligned with the semantics of human rights and the specific practices of appropriation and instrumentalization on the local level.