Presidential Visions of Transitional Injustice

Guest Blogger

For the Balkinization Symposium on Ruti G. Teitel, Presidential Visions of Transitional Justice: An American Legacy of Responsibility and Reconciliation (Oxford University Press, 2025). 

 Colleen Murphy

Ruti Teitel’s Presidential Visions of Transitional Justice reconstructs a history of American Presidential diplomacy focused on efforts to repair past rifts and wrongs.  Teitel covers American Presidents ranging from Barack Obama to George Washington, who each use tools of transitional justice such as apologies, compensation, amnesty and pardon.  I focus in my commentary on the insights that emerge when we use Teitel’s framework specifically to understand the political dynamics on display in the shift from the Obama to Trump era are and the rule of law questions surrounding the Trump Administration. 

It is jarring to read Teitel’s first chapter on President Barack Obama against the sharply contrasting words and deeds of President Donald Trump in both his first and second administrations.  The Obama era seems both radically remote from our present moment and, at the same time, Obama’s actions and words profoundly shape Presidential Trump’s.  Dismantling DEI, refusing to admit error, and the mandated rewriting of historical narratives reflected in directives to the Smithsonian Institute sharply contrast (or, more bluntly) intentionally target the inclusion pursued by Presidents Obama and Biden and constitute a rejection of both Obama's so-called ‘apology tour’ and the more complicated history of US intervention that that tour urged us to acknowledge. 

What explains the pervasive risks of failure of the pursuit of transitional justice is in part the presence of spoilers who resist efforts to transform communities in the manner that transitional justice reflects.  Spoilers reject the claim that wrongdoing occurred or the claim that wrongdoing merits acknowledgement.  Spoilers challenge the allocation of responsibility for wrongdoing and the labels of victims and perpetrators that transitional justice processes reflect.  The perpetrators of the January 6 attempted auto-coup prosecuted under President Biden became the victims of “grave national injustice” subsequently pardoned by President Trump. 

Teitel recognizes the dual uses and purposes to which Presidents through their words and deeds may put tools like apology and compensation.  Scholarship on transitional justice offers resources for more systematically understanding such purposes.  Consider memorialization, which refers to how a culture remembers the past.  As Fabián Salvioli, the former UN Special Rapporteur on truth, justice, reparation, and guarantees of non-recurrence, recognized in his report on memorialization, memorialization can be “a vital tool for enabling societies to emerge from the cycle of hatred and conflict and begin taking definite steps towards building a culture of peace.” But, Salvioli also notes, done poorly memorialization can negatively stereotype and marginalize communities, create a “cult of martyrdom which reopens past wounds and leads to new forms of violence,” and foster a sense of victimhood and past humiliation that justifies new cycles of violence. 

More broadly, this dual uses of memorialization efforts and tools like amnesty and pardon reflect the sharply contrasting aspirations of transitional justice and what political scientists Cyanne E. Loyle and Christian Davenport call transitional injustice.  Transitional justice deals with past wrongs to strengthen of the rule of law, expand democratic governance, hold perpetrators of past wrongs accountable, redress harm suffered by victims, repair of damaged relationships, and establish conditions for non-recurrence.  By contrast, transitional injustice entrenches authoritarianism and denial of past wrongdoing, damages political relationships, and facilitates renewed violence. 

Teitel argued in her first book that law is central to the pursuit of transitional justice (as it is to the pursuit of transitional injustice.) Similarly, in my own work, the rule of law is the orienting ideal around which we can understand both how conflict and repression damage political relationships and what must change for repair and reconciliation to be possible.  What Presidential Visions of Transitional Justice underscores is the distinctive role of Presidential actions and words in shaping the impact of transitional justice tools on the rule of law. 

The rule of law requires governance by publicly announced, generally applicable, prospec­tively effective, and relatively clear and stable rules that are actually enforced, such that the law on the books resembles the law in action. The rule of law represents an ideal in which officials govern through law.  That is, officials the control conduct of legal subjects through the promulgation and enforcement of general rules and not, by contrast, through psychological manipulation, brute force or threat. 

The rule of law, and in particular what legal scholar Lon Fuller calls congruence between declared rules and official action, ensures the supremacy of law: officials exercise political power only in legally authorized ways, even if exercising power in those ways is not the best or most efficient avenue to achieving political goals.  Congruence ensures that legal rules, not the whim of officials, shape how officials respond to the actions of legal subjects. 

The erosion of the rule of law undermines law’s capacity to constrain governmental power and guide private conduct, making it harder for people to be secure from arbitrary interference and to plan their lives and affairs. The rule of law matters for preventing the recurrence of human rights violations committed in legally unauthorized ways, a characteristic feature of atrocities during repression and conflict.  The rule of law, and congruence especially, is necessary for repairing the erosion of trust that occurs when legal subjects cannot look to declared rules to know how officials will respond to their actions.  It is also important to help guard against denial and revisionism with respect to past atrocity: an easy way to challenge claims of torture, for example, is to point to the fact that torture is not legally authorized for officials to commit. 

Lawyers, judges, politicians, and law professors regularly charge the Trump administration with undermining the rule of law.  Some instances of concern involve the use of transitional justice tools to undermine the rule of law.  The January 6 attempted auto-coup, encouraged by President Trump, represented a public refusal by participants to be bound by our constitutional framework.  Other instances of concern involve the words and deeds of Trump administration officials that reject commitment to following court decisions or rules with which they disagree. In both ways, the Trump administration articulates a Presidential vision of transitional injustice, characterized by the unrestrained exercise of executive power, we have good reason to reject. 

Until recently, transitional justice scholarship and practice focused on the use of tools like amnesty and reparations in contexts exclusively outside of the United States.  Even when the US became a subject of study, the role of the executive branch has not been a focus.  Teitel’s book provides an important conceptual lens for understanding the significance of Presidential words and actions for the pursuit of transitional justice (or transitional injustice). 

Colleen Murphy is the Associate Dean for Academic Affairs and Roger & Stephany Joslin Professor of Law at the University of Illinois College of Law.  You can reach Colleen by email at colleenm@illinois.edu.