Constitutional Transitions

[Miguel Schor]

Although it is perhaps not fair to disagree with Ilya when he has promised not to provide us with more posts on constitutional transitions, I have to disagree with one of the points he makes.  I agree that outlawing the political parties of the losers is important (it should perhaps be done permanently rather than temporarily as Ilya suggests) but I disagree that putting the leaders of the old regime up against a wall to shoot them (as much as they may deserve such a fate) is particularly useful.  Rather than look at the aftermath of the civil war (which after all did not lead to a successful constitutional transition), I suggest we look at the historical record of the transitions from authoritarianism in Latin America where a successful constitutional transition is occurring.  


The best historical example of a successful constitutional transition occurred in Costa Rica in the wake of the 1948 civil war and with the establishment of its 1949 constitution.  Much as Ilya suggests outlawing the political parties of the losers is a useful tactic.  In the wake of Costa Rica’s civil war, both the Communist party and the army were outlawed.  Both were anti-democratic players and eliminating them permanently from the political process was clearly useful.  But the leaders of the defeated forces were treated reasonably well.  Their lives and property were by and large protected.  Some of the policies they sought to institute were protected as well.  The point is that the victors did not impose a solution but sought something akin to a compromise.  Granted no such deal was possible with the South after the Civil War, but the point is that force cannot make a transition work.  Somehow you have to convince the losers to play a role in the new political system.  

In any case, using the legal system to go after human rights violators is clearly better than the use of force in instituting democracy.  The democratic transitions that occurred in Latin America in the 80s were negotiated and gross human rights violators “got off” as part of the deal.  But that deal is being “renegotiated” as new political leaders are going after the human rights violators using the legal system, not violence.  A recent article in the NYT illustrates this point: http://www.nytimes.com/2005/09/01/international/americas/01letter.html

Oh, and another useful that Costa Rica did in the wake of the 1948 civil war was that it established a transparent electoral system which the US has not yet figured out how to do.  

Miguel

==============Original message text===============
On Wed, 31 Aug 2005 10:13:43 pm EDT Ilya Somin wrote:

We may indeed be getting off-topic, so this will be my last post on this
subject:

Lee did indeed tell his troops not to melt into the woods. However, this
had a lot less significance than is often thought because 1) his army was
completely surrounded anyway and it's not likely very many of his men
could have escaped to fight on and 2) MUCH more important, despite
anything Lee may have said, there was in fact extensive quasi-guerrilla
violence against newly freed blacks, white southern unionists, and others
during the Reconstruction period. There is therefore little reason to
believe that sparing Lee and other top Confederate leaders helped ensure
postwar peace.

To briefly summarize my position in this debate:

I have argued that executing top leaders of deposed oppressive regimes
and (temporarily)  forbidding their parties from returning to power
facilitates successful transitions to democracy. I have NOT argued for
"mass executions" of people who merely sympathize with the old regime or
its leaders. Nor have I argued for restricting those sympathizers' freedom
of speech (though this might be justified in extreme cases where such
restriction are the only way to block their return to power).

I agree with Mark Graber that a more lenient policy might sometimes be
justified if it is a part of a deal under which the dictator and his
associates agree to give up power without a fight. However, it is surely
not appropriate if he chooses to fight to the bitter end, as was true of
Hitler, Saddam, and the leaders of the Confederacy (I don't count Lee's
surrendering his army at a point when it would otherwise have been wiped
out within a day or two). Indeed, treating forcibly deposed regime leaders
more harshly than those who surrender peacefully seems to me to create an
appropriate structure of incentives for them, hopefully increasing the
proportion who are willing to give up without a fight.

Ilya Somin


On Wed, 31 Aug 2005, Samuel Bagenstos wrote:

> The question seems to me about as list-topical as whether Hugo Chavez is properly compared to Hitler, and I doubt it's a question that can be answered by from-the-hip historicizing.  But my recollection of the end-of-Civil-War history is that, in the run-up to Appomattox, folks in Lee's army wanted to fade away into the countryside and fight on as a guerilla war, but Lee vetoed the proposal.  I could be wrong about this, but if not it does support what Mark's saying.
>
> ====================================
> Samuel R. Bagenstos
> Professor of Law
> Washington University School of Law
> One Brookings Drive
> St. Louis, MO  63130
> 314-935-9097
> Personal Web Page:  http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
> Disability Law Blog:  http://disabilitylaw.blogspot.com/
>
> >>> Ilya Somin <isomin at fas.harvard.edu> 08/31/05 8:33 PM >>>
> I agree with regards to situations where the transition is negotiated with
> the previous dictator. However, Lee fought until his army was completely
> surrounded and on the brink of destruction and Davis only "surrendered"
> when he was physically captured by  Union forces (a bit like Saddam,
> though slightly more dignified).
>
> Ilya Somin
>
>
>
> On Wed, 31 Aug 2005, Mark Graber wrote:
>
> > What what it is worth, I have a graduate student doing a dissertation
> > that maintains that assuring the safety of desposed leaders is crucial
> > to democratic transitions, that autocrats tend not to give up power
> > unless they are assured that they will be allowed to live the rest of
> > their lives undisturbed.  So in this vein, consider whether Lee and
> > Davis would have adopted different strategies in April 1865 had they
> > believed surrender meant death.
> >
> > There, of course, may be an imposed democracy exception.  Namely when an
> > outside army imposes order, perhaps lopping off lots of heads may work,
> > though I have not seen good historican evidence on this.
> >
> > Mark A. Graber
> > _______________________________________________
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===========End of original message text===========



Miguel Schor
Associate Professor of Law
Suffolk University Law School