Locating the logic of transitional justice in liberal democracies: native title in Australia

Transitional justice comprises ‘the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of largescale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’. Nothing in this definition limits transitional justice to post-conflict or post-authoritarian states. Yet, practically, the field is wedded to the paradigmatic transition – a liberal democratic state rising from the ashes of a collapsed authoritarian regime. Despite widespread recognition that transitional justice processes need to be contextualised, this image retains a powerful hold over the field’s theory and practice. Orthodox application of transitional justice measures is thus still primarily legalistic, focusing on violations of civil and political rights, and unsure of its place in conflicted or stable democracies where a total politico-legal rupture is absent. In this article I reconceptualise transitional justice away from the paradigmatic form, re-centre it on its philosophical fundamentals, and explore its relevance and utility for established liberal democracies founded on legacies of historic injustice. My approach involves discerning the teleology of transitional justice. A teleological approach has the benefit of abstracting the field away from the paradigmatic transition and the problematic assumptions that it entails. When distilled to its fundamental aim we see that the purpose of transitional justice is the struggle for a more just social contract. This understanding accurately encompasses both paradigmatic applications of transitional justice, such as in South Africa and Chile, as well as the non-paradigmatic forms, such as in Northern Ireland and Australia. But transitional justice as a transformation from ‘unjust relations to just relations’ is not simply a process of constitutional redemption, or a ‘deepening of substantive democracy’ – it is still transitional justice. The great significance of the field is its Janus-faced nature. While constitutional redemption is purely forward looking, transitional justice recognises that the past is always with us. In mediating the past, the present and the future, transitional justice understands that political commitment to a more just future can only be secured by acknowledgement of past wrongs and the promise of reparative action