Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Chapter Five. The Fruits of Reconciliation: A Bittersweet Harvest

CHAPTER FIVE The Fruits of Reconciliation: A Bittersweet Harvest Chapter Four began an exploration of the normative premises underlying courts’ reliance on historical narratives in constitutional cases. The examination targeted the rhetoric of continuity, inquiring how judge-made continuity rhetoric takes shape and, also, how such continuity rhetoric contributes to shaping identities in polities operating under constitutions with troubled founding myths. In addition to constructing constitutional continuity, justices entrusted with applying such constitution myths often invoke historical narratives in order to settle accounts with the past (reconciliation). Building on these previous findings, Chapter Five seeks to unravel the effect of reconciliation rhetoric on the relationship between the constitutional text and historical narratives. It is worth pointing out that, while continuity rhetoric at least appeared as a conspicuous or embedded feature of historical narratives, the plotline of reconciliation seems clearly external to historical narratives. Thus, with regard to reconciliation rhetoric it is relatively easy to detect the narrator’s agenda when invoking the past. At the same time, it is also important to point out that continuity and reconciliation rhetoric are not mutually exclusive. The project of reconciliation, both in a legalistic and in a more comprehensive sense, is often intermingled with judicial attempts at constructing continuity within the bounds of well-preserved intellectual schemata, and also as consciously undertaken judicial missions to establish continuity. Under a constitution surrounded by troubled founding myths, continuity building, at least in part, is exchanged for 236 CHAPTER FIVE coping with traumas experienced by a segment of the polity in the past.1 Although the impact of court decisions reached in this way in the broader context of polity-wide reconciliation will also be touched upon incidentally, the participation of courts in reconciliation as a societal project will not be focused on directly in the forthcoming analysis . It is important to point out in advance that reconciliation in the technical legal sense does not always entail reconciliation in the sense of coming to terms with the past. When preserved in constitutional argument, a tension between these two understandings of reconciliation might produce constitutional outcomes that trigger practical problems and awkward moments over an extended period of time. The analysis in this chapter is devoted to uncovering these moments in constitutional reasoning. The phenomenon of constitutional review fora dealing with reconciliation is of particular interest for a study of reasoning in constitutional adjudication, since constitutions typically do not impose a reconciliatory mission on constitutional courts. The epilogue of the South African interim Constitution is an outstanding exception in this respect.2 Since the South African truth and reconciliation process, the concept of, or at least the term, reconciliation is hard to detach from democratic transition. The literature on the TRC’s contribution to polity-wide reconciliation with the legacy of apartheid is abundant and rich.3 While the present chapter is informed by the lessons of the South African experience, it will not offer a systematic account of the operations of the Truth and Reconciliation Commision (TRC) and its aftermath. Instead, other constellations have been chosen for an exploration of the rhetoric of reconciliation, where it serves as an extralegal premise, the legitimacy of which might rest on additional, metaconstitutional justifications. Following a brief look at various implications and perceptions of reconciliation, the analysis turns first to Canadian jurisprudence in order to demonstrate how shifts in the reconciliation rhetoric accompanying continuity rhetoric prompt uncertainty in constitutional adjudication. The second set of case studies, on Hungarian transitional justice jurisprudence, covers cases in which the tension between attempts at preserving constitutional continuity and reconciliation rhetoric placed lasting stress on the constitutional order during and beyond the democratic transition. The last part of The Fruits of Reconciliation 237 the analysis drawing upon indigenous jurisprudence will demonstrate how judicial habits aimed at preventing radical changes and preserving continuity in the deep structure of the constitutional and legal order , might cause reconciliation attempts to founder. 5.1. The many faces of reconciliation and their many implications It is a challenging task to evaluate judicial attempts at seeking reconciliation , as reconciliation is yet another concept without a settled meaning. In a narrow, technical sense it is used in reference to attempts to bring various parts of the constitutional canon into a coherent or harmonic (if not homogeneous) state, and also to attempts to fit emerging new claims into the constitutional edifice. Reconciliation in this sense is best understood as the...