Law and the Politics of Reconciliation

Scott Veitch

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138274624
• eBook ISBN: 9781317107736
• Edition: 1
• Topic: Droit
• Subtopic: Droit international

This collection of essays by an international group of authors explores the ways in which law and legal institutions are used in countries coming to terms with traumatic pasts and, in some cases, traumatic presents. In putting to question what is often taken for granted in uncritical calls for reconciliation, it critically analyses and frequently challenges the political and legal assumptions underlying discourses of reconciliation. Drawing on a broad spectrum of disciplinary and interdisciplinary insights the authors examine how competing conceptions of law, time, and politics are deployed in social transformations and how pressing demands for reconstruction, reconciliation, and justice inform and respond to legal categories and their use of time. The book is genuinely interdisciplinary, drawing on work in politics, philosophy, theology, sociology and law. It will appeal to a wide audience of researchers and academics working in these areas.

Chapter 1

The Time of Reconciliation and the Space of Politics

Andrew Schaap

Reconciliation is often discussed in terms of restoring moral community. On this account, wrongdoing alienates the perpetrator both from the victims he has injured (by failing to show respect for them as his moral equals) and from the moral community he has disturbed (by violating its publicly shared norms). Reconciliation is initiated by the perpetrator’s acknowledgement of the wrongfulness of his act, followed by remorse and reparation, which opens the way for forgiveness and, eventually, the restoration of community. I will proceed on the assumption that it is a political mistake to construe reconciliation in these terms, given the starkly opposed narratives in terms of which members of a divided society typically make sense of the violence of the past. Political reconciliation will not get off the ground if it is conditional on first establishing a shared moral account of the nature of past wrongs. In divided societies, neither community nor communal norms can be presupposed because the politics of reconciliation turn precisely on the question of belonging and the terms of political association.1

While moral judgement necessarily presupposes a universal moral community, the politics of reconciliation are always enacted in relation to an anticipated political community that is a contingent possibility of a particular historical context. To understand reconciliation politically, therefore, we should think of it in terms of revolution rather than restoration. As such, reconciliation would not begin with the recollection of a prior state of harmony in terms of which our present alienation might be understood and redressed. Rather, it would be initiated by the invocation of a ‘we’ as the basis of a new political order. In this contribution, then, I take seriously Bert van Roermund’s (2001, p. 179) suggestion that in certain circumstances ‘reconciliation is what makes the revelation of truth possible’ and explore what I take to be the first step in what he calls the ‘anthropological’ sequence of reconciliation, namely, the act of constitution.2

Following Hannah Arendt, constitution entails both beginning and promising. On the one hand, it requires that we conceive the present as a point of origin, which might appear in retrospect as the moment in which a ‘people’ first appeared on the political scene. On the other hand, it requires that former enemies promise ‘never again’ in order to condition the possibility of community in the future. By constitution, then, I do not refer only to issues of jurisdiction and state organisation. More fundamentally, I am concerned with the performative constitution of a ‘we’ through collective action and the constitution of a space for a reconciliatory politics in which the appearance of this ‘we’ is an ever-present possibility. As Hannah Pitkin (1987, pp. 167–168) discusses, constitution in this sense refers both to something ‘we’ are (‘the distinctive way of life of a polis, its mode of social and political articulation as a community’) and something ‘we’ do (the activity of ‘founding, framing, shaping something anew’).

I will explore the relation between the time of reconciliation and the space of politics by juxtaposing Arendt’s early Love and Saint Augustine with her mature work On Revolution. In doing so, I suggest that the temporal modality in terms of which we conceive reconciliation might work to delimit a space for politics in a way that either opens or forecloses political opportunity. When reconciliation is conceived in terms of restoration, moral community tends to be represented as a regulative ideal that over-determines and thereby depoliticises the terms on which a reconciliatory politics might be enacted in the present. In contrast, representing political community as a contingent, historical possibility that depends upon our common action in the present reveals the contestability of the terms of reconciliation and so keeps the politics of reconciliation in view.

Of course, any delimitation of political space involves, by definition, both opening and enclosing. What is at stake in the relation between the time of reconciliation and the space of politics is the inter-relation between a normative order and the political action foundational to this order. In this sense, the relation between the time of reconciliation and the space of politics correlates approximately with that between polity (or ‘the political’) and politics. Following Ricouer (1965) and Lefort (1988), polity refers to the unity in terms of which politics or social conflict is staged (represented) and political evil is recognised. In this context, to understand reconciliation in terms of the second (political) temporal modality advocated here would entail, as Bert van Roermund (1996, p. 42 – emphasis in original) puts it (in a different context), ‘postponing every definitive legitimation of the limits a society has set itself in order to become “one”’.

Between past and future

The Christian faith in reconciliation is inseparable from the moral ideal, articulated by Jesus in his sermon on the mount, that we should love our enemies (Luke 6: 31–37). Yet, as Arendt shows in her intriguing dissertation on St Augustine, there is a paradox inherent in the ideal of loving one’s neighbour as one’s self, given the self-denying nature of Christian love. Since right love of God (caritas) involves relinquishing one’s wrong love of the world (cupiditas), Arendt wonders how the individual who is ‘isolated from all things mundane’ in God’s presence can be ‘at all interested in his neighbour’ (Arendt, 1996, p. 7). For to love one’s neighbour as one ought to love oneself (in caritas) is to love him not in his singularity but by virtue of the universal quality of his createdness. The other’s will toward me as friend or enemy is relevant only in the situation of worldly interdependence. In the presence of God his particular relation to me becomes irrelevant. To love one’s neighbour in caritas is therefore to love the source of his being rather than the particular person who appears before me. Yet this seems an inhumane love that contradicts our mundane experience of love as both partial toward and dependent on its object.

As Arendt shows, this paradox of neighbourly love has a temporal dimension that arises from the alienation of mortal creature from its eternal creator, which reconciliation would overcome. To exist in the world is to be subject to time, to be always no more and not yet. In contrast, God always is and, as such, stands outside time. For Augustine, the human experience of alienation arises from the human awareness of being subject to time, which comes about through the imagination of the non-time of eternity. The desire to be reconciled with God, in this context, reflects the human aspiration to overcome the alienation of temporal existence by ‘returning’ to eternity. It is this anticipation of an absolute future – the re-presentation of an absolute past (before the Fall) as a radical future possibility (through Grace) – that gives rise to the paradox of neighbourly love.

Following Augustine, Arendt argues that time itself is unthinkable without a creature through whom time passes, a creature who is ‘inserted’ in time in such a way that it is broken up into the tenses of past, present and future (Arendt, 1996, p. 55). As the only animal that knows it was born and that it will die, the human agent experiences time as a stretching out between its first inexplicable appearance in the world and its ultimate disappearance from it. In other words, we actualise temporality through remembrance and anticipation.3 This is the meaning of Faulkner’s famous claim that ‘the past is never dead, it is not even past’ (cited in Arendt, 1977, p. 10). For the achievement of memory is to re-present the past, to make present for our thinking attention what is no longer. Similarly, the future is actualised by our hopes and fears as the ‘threatening or fulfilling “not yet” of the present’ (Arendt, 1996, p. 13). We exist, then, in the broken middle of time – the ‘gap between past and future’ – since the present is only experienced as a particular now in relation to our representations of past and future. In our present situation we anticipate the future with fear or hope based on remembrance of what was and the knowledge that what has been could be again. Conversely, we remember the past with regret or nostalgia in terms of our imaginative anticipation of the possibilities that the future holds (Arendt, 1996, p. 48).4

Time, as it is humanly experienced, is therefore distinct both from the non-time of eternity (the absolute of temporality) and the time of nature (the everlasting cycles of life). Expectation of death and remembrance of birth make humans aware of their finitude in contrast to the infinity of a God who has no beginning or end but stands outside time (Arendt, 1965, p. 206). Against the dispersion of human existence into past, present and future, eternity is conceived as a standing still of time in which the presence of the whole of time is manifest in an enduring Now (Arendt, 1996, p. 53). We experience alienation from God because we are able to imagine eternity when we retreat from the world to think. Yet we remain aware of our own finitude due to our acting and suffering in the world.5

On the other hand, the human experience of time is in contrast to the time of nature because it follows a linear rather than a cyclical course. In contrast to the endless cycles of nature, which proceed along their course indifferent to human affairs, the stretching out of time through remembrance and anticipation means that events, actions, biographies, epochs are thought of as having a beginning, middle and an end. That every life can eventually be told as a story that begins with birth and ends in death is the ‘pre-political and pre-historical condition of history, the great story without beginning or end’ (Arendt, 1998, p. 184). As animals we are subject to the cycles of nature and to those necessities required to sustain life. Yet, we also transcend nature in our historical existence as world-building beings who seek to establish a sense of permanence in our affairs through work and remembrance. We experience alienation from Nature because, although we are subject to the never-ending cycles of biological life, we have a sense of the irrevocable succession of events – of time ‘marching on.’

This ordering of experience in terms of a rectilinear time concept has the potential to redeem human existence from the futility of the endless repetition of nature. Yet it also threatens to empty experience of meaning by explaining our doing and suffering in relation to an ultimate end. Hope for reconciliation with God underpins a teleological conception of time as building towards a unique and shattering climax, a final judgement at the end of history, which will restore believers to their place in the eternal kingdom of God. Sheldon Wolin (1961, p. 124f.) argues that this Christian conception of time, which displaced the classical conception of cyclical time, had enormous political implications. Christianity transformed human beings’ relation to the future with the promise of redemption. This enabled men to anticipate the unfolding of time with hope rather than the dread that had been characteristic of the classical mind.6 But this new time-dimension was anti-political, according to Wolin (1961, p. 124), because ‘political society was implicated in a series of historical events heading towards a final consummation which would mark the end of politics.’ Consequently, politics was no longer looked on as an opportunity for glory but as a weary necessity of worldly existence. Moreover, the quest for the ideal polity was condemned as irreverent and proud ambition animated by the desire to establish Man’s independence from God.

The manner in which we reckon with time therefore conditions how we invest the world with meaning or divest it of meaning. To some extent, Arendt concurs with Wolin’s conclusions about the anti-political nature of the Christian conception of time (Arendt, 1998, pp. 21, 54–55, 120).7 The ideal of an absolute future by which we make sense of the present leads us to take an instrumental attitude to the world, according to which events and actions are explained as means toward this ultimate end. An anticipated future of eternal life in God in this way serves as a point of reference that lies outside the world and regulates ‘all things inside the world as well as … the relationships by which they are interconnected’ (Arendt, 1996, p. 37). Since the world is used as a means toward realising this highest good rather than enjoyed for its own sake, it ‘loses its independent meaningfulness and thus ceases to tempt man’ (Arendt, 1996, p. 33).

The Christian eschatology thereby produces a tension between the vertical reconciliation hoped for between individual and God and the horizontal reconciliation sought among neighbours in the world.8 Reconciliation between neighbours is predicated on a universal love that would render all distinctions between persons (including that between friend and enemy) irrelevant. But this seems to require ordering human affairs from a timeless standpoint such that community with the other is countenanced in terms too abstract to realise any meaningful ‘we’ in the world. Human affairs are divested of any intrinsic worth so that ‘this world is for the faithful … what the desert was for the people of Israel – they live not in houses but in tents’ (Augustine cited in Arendt, 1996, p. 19). This leads Arendt to wonder, ‘Would it not be better to love the world in cupiditas and be at home? Why should we make a desert out of the world?’ (Arendt, 1996, p. 19).

Indeed, it is precisely such love of the world (amor mundi or ‘worldliness’) that Arendt advocates in her later work when she turns to politics to redeem human existence from the meaninglessness generated by a (secular) instrumental mentality in public life. In this context, Arendt affirms the striving for worldly immortality against the yearning for eternity. Philosophy begins from wonder at the eternal, which can only be experienced outside the company of others in the solitude of thought. Political life, in contrast, is animated by the desire of actors to win recognition from their peers and to establish a lasting remembrance of their words and deeds (Arendt, 1998, pp. 17–21). The achievement of a polity is that it makes possible an ‘organised remembrance’ to save political action and speech from being futile.9 As Paul Ricoeur (1983, p. 62) observes, immortality is ‘what we attempt to confer upon ourselves in order to endure our mortal condition’. The political enterprise of distinguishing ourselves through action and of founding and preserving a world in common is, in this respect, the ‘highest attempt to “immortalise” ourselves. From this attempt springs both the greatness and the illusion of the whole human enterprise’ (Ricoeur, 1983, p. 62).

Against the temptation to conceive the time of reconciliation in relation to a sacred origin or end of history in which our alienation is overcome once and for all, this suggests that a mundane (i.e. ‘worldly’ or political) reconciliation depends on constituting a space for politics in the present within which conflicting memories and expectations can be brought to bear on each other. Politics is concerned with men in their temporal existence and in their relation to each other as friends and enemies. As Arendt observes, morality may require us to imagine the ‘earth as the homeland of all mankind’ and to presuppose ‘one unwritten law, eternal and valid for all’ (Arendt, 1968, p. 81). Politics, however, does not deal with ‘Man’ in the abstract (as autonomous, rational being, subject to the laws he gives to himself) but with ‘men’ in their plurality (as earthbound creatures who belong to different communities and are ‘heirs to many pasts’) (Arendt, 1968, p. 81). Following from this, if reconciliation is to be political, it depends on citizens discovering good grounds to want to share a polity at all with their historical enemy or oppressor. This requires not that we transcend our relation to our neighbour as enemy but that we transform it into one of civic friendship.

Insofar as it is a political enterprise, therefore, reconciliation would not hypostatise moral community as an ultimate end in terms of which our present relations should be regulated. Rather, political reconciliation would be animated by the will that the present be remembered by a community to come as the moment in which it originated. This is why political reconciliation is initiated not by the acknowledgement of wrongdoing in terms of an already established set of shared norms but by the act of constitution: the constitution of a space for politics makes possible a future collective remembrance. Or, as ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Introduction Emilios Christodoulidis and Scott Veitch
• 1 The Time of Reconciliation and the Space of Politics
• 2 Reconciliation and Reconstitution
• 3 The Risk of Reconciliation
• 4 Reconciliation as Domination
• 5 ‘Spatialising History’ and Opening Time: Resisting the Reproduction of the Proper Subject
• 6 Reconciliation: Where is the Law?
• 7 Transnational Law and Societal Memory
• 8 Sacrum, Profanum and Social Time: Quasi-theological Reflections on Time and Reconciliation
• 9 Reconciliation as Therapy and Compensation: A Critical Analysis
• 10 Feminism and the Ethics of Reconciliation
• 11 Constitution as Archive
• 12 The Time of Address
• Index