Lustration as a Problem of the Social Basis of Constitutionalism

Abstract

One part of building a new constitution after wars, revolutions, civil wars, or dramatic regime changes is to draw a cultural bowwhy in time, deckring various aspects of the old regime illegitimate and various legalities and constitutional principles of the new regime legitimate. One part of that process, in turn, is to decide hocv the new regime should treat the g u i l t of for terror, collaboration, betrayal of information to the regime, Arthur I , Stinchcombe is John Evans Professor of Sociology at Northwestern University. The encouragement and criticism of several members of the editorial board of Law and Social Inqufry are gratefully acknowledged. 1. Hannah Arendt, Eichmann in Je~usdern: A Report on the B d t y of Evil (rev. & enl. ed. Baltimore: Penguin Books, 1977) (originally published in the New Yorker and in a book published by V i k w Press in 1963). 0 1995 American Bar Foundation. 0897-6546/95/2001-0245$01.00 245 2. Id. at 246-47; her emphasis. 3. Id. at 253-79. One can argue that of the American Constitution, art. I, sec. 6, para. 1; art. 111, sec. 2, para. 3, & sec. 3; art. IV, sec. 2, para. 2; the Fifth through the Eighth Amendments and perhaps the Ninth (secs. 1 & 3) are the total of constitutional provisions conceming criminal law, unless the impeachment provisions are included. Of these the only lustration provisions are in art. 111, sec. 3, and in the Fourteenth Amendment, sec. 3. This is roughly 5% devoted to criminal law and less than 1% devoted to lustration. This strikes me as a good measure of the constitutional importance of criminal law and of lustration respectively in constitutional thought. That means that criminal and lustration law are not, in my opinion and i n the opinion of those who wote the American Constitution, the major ways of discussing how to constitute the polity, though they are nontrivial and need to be done right.

Collaborators and national memory: The creation of the encyclopedia of pro-Japanese collaborators in Korea

“…As Whiggish historians remind us, history is written by the winners, and the collective memory of collaboration depends on those who exercise control after an occupation and those who help the process of redeeming control. However, it may be too much, and perhaps even unfair, to examine the guilt of collaborators immediately after liberation because the victors' fervor for punishment stands alone, sometimes leading to abnormal cleansing or revenge (see Stinchcombe, 1995). Or, despite all, this process of "lustration" may help a society to learn democratic decision-making (Nino, 1996).…”

Transitional Justice and Changing Memories of the Past in Central Europe

“… The message of retributive justice is that an individual acted as a moral agent, was fully responsible for his or her action and was punished accordingly. We hypothesize that retributive strategy expresses: (a) individual responsibility and (b) condemnation of the transgressor. On the other hand, revelation postulates a structural responsibility because the exposed individuals ‘blame the system’ and ‘make excuses’ (Stinchcombe 1995). Such signals are amplified when the exposure is pursued as a method of establishing the transparency of the system instead of a naming-and-shaming process.…”

“…On the other hand, revelation postulates a structural responsibility because the exposed individuals ‘blame the system’ and ‘make excuses’ (Stinchcombe 1995). Such signals are amplified when the exposure is pursued as a method of establishing the transparency of the system instead of a naming-and-shaming process.…”

Above the Law? A Comparative Study of National Prosecutions of Heads of State

“…This may or may not be accompanied by a criminal conviction. Stinchcombe (1995) traced the origin of lustration to the ''ritual cleansing'' of Roman troops. ''Whatever the troops had done,'' he explained, ''after the lustration they were a clean troop of the Republic or Empire'' (Stinchcombe 1995, p. 246).…”