Excerpted From: Emily J. Kawahara, Transformative Dynamics: Reframing the Role of Reparations in Transforming Social Order, 60 San Diego Law Review 497 (August-September, 2023) (87 Footnotes) (Full Document)

EmilyJKawahara.jpegAccording to Kathryn Sikkink, a revolution of human rights advocacy in tandem with heightened levels of accountability for human rights abuses has led to a “justice cascade,” where it is now expected that human rights violators will be held criminally accountable for transgressions. This normative shift of prosecuting individual perpetrators for human rights violations has also affected the larger picture of justice: human rights violations do not live in a silo and often occur against a backdrop of much-needed institutional reform. This Article considers the relationship between transitional justice, development programs, and social services, specifically using reparations as an example of a transitional justice mechanism.

Although reparations and development programs may be connected, this Article argues that they must be kept separate for two reasons. First, combining the two overlooks the main purpose of reparations. Second, the combination muddles the appropriate level of expectation placed on each distinct effort and may place too high an expectation on reparations as the sole mechanism to transform social order. Therefore, establishing a clear limitation of what reparations can achieve properly situates individual transitional justice mechanisms as markers to establish what this Article calls “transformative dynamics.”

Accordingly, a post-conflict environment may be more conducive to achieving a transformational agenda through the layering of these incremental transformative dynamics. Implementing a transitional justice mechanism, like a reparations program, may be one such incremental--though significant--marker, but it will not singly create the transformation ultimately sought. This framing of transformative dynamics attempts to mitigate the placement of unrealistic expectations on transitional justice mechanisms in the larger goal of transforming social order.

This Article continues in five subsequent parts. Part II highlights applicable theory, beginning with a brief discussion of transitional justice and arguing instead for a transformative dynamics framework. This Part uses Robert Cox's binary theoretical approaches to world order as an illustration. Part III introduces reparations as one transitional justice mechanism and explains how the purpose of reparations--specifically reparations under Roy Brooks's Atonement Model--fundamentally limits what it can achieve, noting that reparations cannot and should not be expected to fill gaps in development programs or social services. Part IV addresses how reparations, development programs, and social services may be wrongly viewed as synonymous but can be complementary. Part V spotlights the importance of maintaining realistic expectations of transitional justice mechanisms in a transformative dynamics framework to properly measure success. Part VI concludes this Article.

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De Greiff states that “effective synergies depend upon sensible divisions of labor.” This Article has discussed the differences between transitional justice, development, and social services to illustrate limitations and, in doing so, demonstrate how expectations should be placed on transitional justice mechanisms accordingly. Rather than expecting transitional justice mechanisms to transform social order, such mechanisms can contribute to transformative dynamics. This Article's application of transformative dynamics aims to find a middle theory approach between problem-solving within the social construct parameters and recreating those parameters with feasible alternatives. Recognizing the limitations of transitional justice assures that transitional justice mechanisms are employed to create transformative dynamics and held to appropriate expectations. This transparent limitation clarifies what may be deemed successful in transitional justice and social change.

Emily J. Kawahara. J.D. 2023, University of San Diego School of Law; M.A. in Peace and Justice 2023, Kroc School of Peace Studies, University of San Diego.