Continuing our cooperation with Law & Critique, today we are presenting the work of Josh Bowsher. A full text of the article published in Law & Critique can be viewed here.

Our understanding of transitional justice is dominated by an avowedly normative body of scholarship whose allure is rooted in its technocratic promise to solve real problems ‘on the ground’. From its perspective, transitional justice is conceived a set of legal and quasi-legal institutions that can attend to the human rights legacies of countries making the transition toward democracy. These backward-looking processes are understood to be valuable because of their purported contribution to the liberal democratic futures under construction during times of transition. Transitional justice, we are told, is a liberal good because it (re)establishes the rule of law, promotes a culture of human rights, and provides a path to reconciliation between perpetrators and their victims.

The problem with this body of scholarship is that it tends to side-step knotty issues regarding the relationships between transitional justice and power at both the macro and micropolitical level, nor is it particularly concerned with how transitional justice might serve to reproduce and exacerbate existing inequalities. Above all, it is unable to reckon with the ways in which transitional justice might be implicated in neoliberal globalisation, a social formation that has been all but hegemonic since the ‘great turn’[i]to market fundamentalism in the late 1970s.

This blind spot is important given that, from its origins in the Latin American transitions of the 1980s, the remarkable rise of transitional justice has taken place entirely within the historical confines and gritty realism of neoliberal hegemony. Consequently, transitional Justice mechanisms have largely intervened in neoliberal transitionsthat are greatly constrained by free market policies which demand the privatisation of public goods and deregulation of the economy. Moreover, transitional justice is now fully integrated into the institutions of global governance as a ‘toolkit’ now recommended not only by the UN Security Council but also avatars of neoliberal globalisation such as the World Bank. These correlations, I suggest, call for an investigation of the ways in which transitional justice might contribute (even inadvertently) to the neoliberal project.

Which Neoliberalism?

Following this trajectory requires developing some clarity around the term neoliberalism. This isn’t necessarily an easy task: confusions and obfuscations about the term abound. Fortunately, an emerging body of scholarship has attempted to address this problem by locating a definition for neoliberalism within a more precise set of co-ordinates. Noting that definitions organised around a specific set of economic policies can come unstuck in contexts that don’t neatly fit this pattern, critical studies have often turned a Foucauldian approach which conceptualises neoliberalism as a governmentality or a modality of governing which aims to direct human conduct in particular ways.

Wendy Brown’s Undoing the Demos (2015) makes a particularly important contribution to these discussions. Like other proponents of the governmentality approach, Brown insists that neoliberalism governs by exhaustively rendering all aspects of social and cultural life according to the logic of the market in order that that the human subject is configured as an enterprise engaged in market competition with others. In this respect, Brown follows others in perceiving neoliberal ‘freedom’ as little more than a ‘game’ of entrepreneurial decision-making that encourages subjects to seek market choices which make them more valuable or profitable than their competitors.

However, the novelty of Brown’s approach is to suggest that this aspect of neoliberal governmentality is not, on its own, adequate to the task of governing. The principle of market competition does not easily lend itself to the kinds of collaboration and integration that are required to make society function as a whole. Responding to this problem, Brown turns to Foucault’s lesser known concept of ‘omnus et singulatim’, the double process of amassing society and individualising it, that he thought defined the liberal mode of governing that emerged in the late 18^thcentury. For Brown, neoliberal governmentality articulates its own particularised form of omnus et singulatim designed to both individualise subjects and integrate them into the totality of society.

Brown argues that while neoliberalism individualises society by producing the subject as a competitive enterprise, it also amasses society through the practices of ‘governance’ that it has developed over the last 40 years and which have now superseded the traditional practice of government. Mirroring the production of the subject as enterprise, governance dissolves the distinction between state and corporation by figuring them both as enterprises that not only can be managed in similar ways but can and should co-operate to govern the social. Human subjects, national governments and corporations are made commensurate by a technocratic discourse that transforms political conflicts into an emaciated concept of problem-solving which disavows the structural inequalities formed at the intersections of race, gender, and class. All social forms – from the individual to the state – become ‘stakeholders’ who, through thin forms of co-operation and consensus, can resolve technocratically conceived social problems that are cleaved from any notion of political antagonism.

Importantly, neoliberal integration does not result in the kinds of collective responsibility or action that would be characteristic of a left project. Rather, stakeholder co-operation isolates individuals as entrepreneurial units with individualised responsibilities, efforts, and rewards. In short, neoliberalism achieves: ‘integration and individuation, cooperation without collectivization—neoliberal governance is a supreme instance of omnus et singulatim, the gathering and separating, amassing and isolating,’ (Brown, 2015: 129–130).

TransitionalJustice as ‘Omnus et Singulatim’

If transitions are fundamentally constrained by the introduction and/or intensification of neoliberal governing, then how should we understand the role of transitional justice in these periods of social change? The hypothesis I want to develop here is that transitional justice articulates its own forms of ‘omnus et singulatim’ that helpfully support and prefigure the neoliberal societies that are forged during transition.

Of course, transitional justice has a specific concern with amassing post-conflict societies. After all, its objectiveis to reconcile national communities, or at least to bring previously warring factions peacefully together. Transitional justice sets about this task through the production of collective memories or at least shared truths about what happened in the past that are designed to foster shared understanding and acknowledgement. The minimal consensus offered by these shared truths, it is hoped, can inaugurate a new spatiotemporal plane upon which the divided constituencies of transitional societies can build a peaceful coexistence.

Nevertheless, the consensus afforded by transitional justice is rooted in the depoliticising legalism of human rights, which is effective insofar as it provides a less contestable version of the past based on factual findings of criminality, rather than the socio-political claims and counter claims of oppositional groups. Crucially, the antagonistic striations of race and class which constitute the past are smoothed over and effaced by narratives organised around victims and perpetrators of physical violence. The consequence of emptying the past in this way is that the shared present also becomes a smooth space uncomplicated by the socio-economic inequalities that continue to organise social and economic life. All that remains are unresolved antagonisms between perpetrators and victims; a problem for which transitional justice provides some form of redress.In this way, the reconciliatory drive of transitional justice gathers society together in ways that supplant deeper notions of solidarity that are anathema to the neoliberal project.

At the same time, this process of amassing is completely dependent on forms of individualisation. Through the legalism of rights transitional justice transforms messy and complex situations into a matrix of individualised crimes committed against individual victims. It is only through this procedure that transitional justice can ‘see’ the past and make it intelligible for the communities it intervenes in. Within this process, the category of victim does not operate only as a formal legal category but also implies its own forms of subjectivation. Indeed, victim subjectivities are produced through the myriad of transitional justice practices, from truth-telling activities, to interviews, witness accounts, and workshops that encourage individuals to think and speak as such.

Importantly, becoming victim is not only individualising but also depoliticising. As philosophers like Alain Badiou and Francois Laruelle have shown,[ii]the figure of the victim is fundamentally defined by a lack of human agency; it is the reduction of human subjectivity to a passive kernel of biological life. The depoliticising effects of producing individuals as passive victims is strategically useful for neoliberal transition. For it initiates a stripping back of subjectivity which displaces the collective and communitarian identities, some overtly political and others not, which would cause all kinds of difficulties for neoliberalisation during transition.

Furthermore, the passivity of victims makes them eminently governable, even if at first it seems to be in total opposition to the kinds of active, entrepreneurial subjectivity demanded by neoliberal governmentality. In fact, the various market apparatuses devised by neoliberalism can make a claim to govern victims insofar as they become a way of ‘helping’ them to rediscover their agency by taking part in the entrepreneurial game and enjoying its limited freedoms.

When transitional justice is viewed in this way it becomes possible to see the ways in which it ‘governs’ its situation, both bringing society together and individuating it in ways that are remarkably given to the logic of neoliberalism. This poses the question not only of how we wrest transitional justice from the neoliberal project but perhaps whether we think it should govern the social at all. The former almost certainly requires a set of investigative tools that can re-politicise the economy as a relevant field of enquiry in relation to the past and that can successfully challenge the neoliberal present. The latter is a much more complex question, but I wonder if a starting point is to ask in what ways it might be possible to move from the governance of stakeholders to the ‘self-governance of peoples’ within the project of transitional justice.

Josh Bowsher is Teaching Fellow in Sociology at University of Keele

[i]A phrase I borrow from Pierre Dardot and Christian Laval’s The New Way of the World (2013).
[ii]See Badiou’s Ethics (2001) and Laruelle’s General Theory of Victims(2015).