Retribution and Judgment Violence , Democratic Accountability, and the Invocation of the Rule of Law

Borne m a n , Joh n 1 998: H.et. r ibu t. i on a n d Judgn w n t. : Vio lence, Democrat.ic Acco u n t. ­ a h i l i t. y, a n d t. he I nvm:a t. ion o f t. he llu le of Law. l•: t. h nologia E u rop:wa 28: 1 : 1 1 1 fiO . D u r i n g the li n;t. decade !iJ I I ow i ng the reg i me change� i n 1 989 i n East.-Cen t.ral l�u rope, t.ho:;e regi me� that. have :;ucce�:; fu l ly and peacefu l ly democrati zed have e ng-aged in �ome �ort. of ret. r i b u t. i v e j ust.ice p u n i s h i ng w rongdoers and v i n d ica t i n g v i cti ms . Other regi mes have become e v e n l e s s democratic and engaged i n fu rth e r v i o l ence b y i d c n t. i t:y i n g su b�t. it.ut.c v i cti m � t. o �acri lice i n o r d e r t. o a v o i d h o l d i n g actual w rongdoers accountable for their past. crimes. The author exam i nes the eHicacy of retributive justice through the work o ft .h e d i v is i o n o f t. h e G e r m a n cri m i n a l j u�t. ice �yst.em respons ib le ((H' prosecuting "gov­ ernmental and reunification crime" and of a public commission of vindication. He the n compares th i s German effort with Lh at. in se lect. other East-Central E u ropea n regi mes. I n order Lo contr i b u te t.o democratic legiti m acy, he concl ude�, regi mes must. studiously avoid seeking substitute victims and instead hold those in the center of Lhe regi m e acco u n tab le liH' w rongd o i n g . At. the same L i m e , they m u st. make a good faith eflort. t.o redress the wrongs of unjustly harmed parties . Efl'cct.ive crim inal law establishes the state as a moral agent representing the ent ire com m u n i ty by reiterat ing the p r i n ci p les of re�pons ib i l i t.y and accountabi l i ty lor i nj ust ices as part. of an attempt. t.o reestabl ish the dignity ofvict.ims . I n other words , t.o avoid a cycle of retributive violence it m ay be wise t.o go through a longer phase of retributive j ustice i n the present.

victi ms. Other regi mes have become even less democratic and engaged in fu rther violence by idcnt.it:ying sub�t.it.ut.c victim� t.o �acrilice in order t.o avoid holding actual w rongdoers accountable for their past. crimes.
The autho r examines the eHicacy of retributive justice through the work oft .he division of t.he German cri minal j u�t.ice �yst.em responsible ((H' p rosecuti n g "gov ernmental and reunification crime" and of a public commission of vindication. He th en compares th is German effort with Lh at. in select. other East-Central European regimes. In order Lo contribute t.o democratic legitim acy, he concl ude�, regi mes must. studiously avoid seeking substitute victims and instead hold those in the center of Lhe reg-ime accountable liH' wrongdoing. At. the same Lime, they must. make a good fa ith eflort. t.o redress the wrongs of unjustly harmed parties. Efl'cct.ive criminal law establishes the state as a moral agent representing the ent ire community by reiterating the principles of re�ponsibilit.y and accountability lor injustices as part. of an attempt. t.o reestablish th e dignity ofvict.ims. In other words, t.o avoid a cycl e of retributive violence it may be wise t.o go through a longer phase of retrib utive justice in the present.
Prof' essor John Borneman, Department of' Anthropology, Cornell Un iversity, Ithaca, NY 14853, USA. E-mail: jwb@comell.edu Very early in life we begin to learn legitimate ways in which we can respond to being injured or wronged. We learn concepts of fa irness and methods of judgment that enable us to distin guish between personal revenge and abstract principles of justice. Ye t this distinction is often confused, by everyday actors and academics alike. Wronged individuals fr equently pursue a strategy of revenge in righting a wrong while convinced that they are actually fo llowing prin ciples ofjustice. Aside fr om the general problem of self-deception, this misperception results largely because the category of being wronged, while fu ndamentally indeterminate and open to radically different interpretations, is none theless interpreted through self-contained moral worlds that present themselves as definitive and universal principles of justice. Let me ill us-trate this confusion with a bit of contemporary fo lklore, a 1989 German children's book written by Werner Holzwarth and illustrated by Wolf Erlbruch, translated into English and printed in Singapore in 1993 as The Story of' the Little Mole Who Went in Search of' Whodunnit.
As Little Mole "poked his head out ofhis mole hole one day ... something very strange hap pened . ... It was long and brown ... , and worst of all, it landed right on top of Little Mole's head." Angrily, Little Mole goes through the animal kingdom in search of the culprit. He asks a pigeon who was just flying by. "Me? No, not me," answered the pigeon, who then showed mole how he does it. Mole then confronts the horse, who drops big and round dumplings; the cow, who makes a pie; the goat, whose brown lumps resemble Mole's fav orite caramels; the hare, L,llle f4o}h e a;f aesdJ� t flyJno
who l et ::; fly fi fteen litt le beans; the pig, who drops a smelly heap. )i' inally, Litt le Mole ask::; two fl at flies, who direct him to a clog. Litt l e Mole then confronts Henry, sitting in his dog house, and shiis in the middle of his fin·chead. The story concludes, "The deed done, a happy and satisfied Little Mole disappeared back into his mol e hole." Is the message ofihis story, as the publisher states on the credits page, thai "Litilc Mole gets his own sweet reven ge?" Or i s it more generally a talc about th e possi bi lity of ret ributi ve jus tice, affirmation ofihc bel ief in the pan-human necessity of rectifying a pe rceived i njury, of righting a wrong through a systematic process ofinvcstigation th at resu lts in holdi n g th e actu al wrongdoer accountable? Is the Little Mole engaged in something other than an act of revenge, something other th an th e search fo r a substitute victim, something other than "polit ical justice?" I want to suggest th ai th is chil dren's book illustrates a basic principle of the rule of law (Rechtsstaailichkcit), that oflearn ing how to right a wrong. Learning this princi ple begins in childhood, and today the exact same moral tale -the invocation of the same principles of justice -is told in Germany, the United States, and Singapore, if not in most places of the world. The example of the Mole, then, might serve the purpose, to quote Sally Falk Moore (1985: 31), "not to discern the shape of some presumed local culture or morality" nor to ascertain "user satisfaction" with a particu lar fo rm of dispute resolution but "to discover what kind of residue is left behind by supposed ly 'closed' episodes, to reconceive the 'closed' episode in an ongoing flow of time, and to think about the range of possibility of subsequent consequences." Is it true, then, as this child ren's tale suggests, that, while legal cultures which aspire to the "rule of law" type may represent themselves as hermetically sealed, self-referential, auto-poetic systems, they are in fact based on the invocation of the same, easily translatable set of principles of justice?

Accountability and Retributive Justice
Four months after the Berlin Wall was opened, in March 1990, during a short research trip in Berlin, 1 was ::;truck by publ ic demands, often bordering on hysteria, fi>r retributive ju::;iice . These demands ranged fr om requests for reha bilitation of one's name or reputation to calls fur the prosecution of members of the old elite. Initially they hacl liitlc to do with fights ovc r th e return or redistribution of property, which hm; since occupied the attention of so many intel lec tuals. People seemed united that the "actually existing socialist" regimes were illegitimate and that their elites had behaved unethically, if not criminally. Jn thi s translormativc moment, the burning issues in public discourse, not only in l�ast Germany but throughout much of East Central Europe, became: How and for wh at reason should people be held accountable, and how could past wrongs be set right? It appeared that th e immediate legi timacy of the new post socialist states of the fo rmer East bloc rested largely on fo rmulating adequate responses to what all agreed were intractable problems of rectifYing perceived injustice under the old re gimes. This reckoning has involved an attempt to invoke the principles of the rule oflaw. Here I want to make a distinction between invocation and installation.
While each political regime may install dif fe rent institutional arrangements balancing executive, legislative, and judicial needs, dem ocratic political regimes all require invocation of the same set of principles of the rule of law.
These principles enumerate different aspects of institutional and political accountability, for the purpose of making the relation of the sover eign to the ruled transparent, explicable, and predictable. In a comparison of the Rechtsstaat with the rule oflaw, Fuller (1969) andMacCor mick (1984) reduce the principles to fo ur basic ideals: separation of powers, principle of legal ity, prohibition on retroactive legislation, and principle of trust in the legal system.
The relevance of the initial topic that inter ested me in 1990 is no longer limited to the losers of the Cold War, to the fo rmer socialist regimes of East and Central Europe. From Western Europe to Latin America to Asia, even the regimes of the capitalist victors and their allies have been unsettled by demands for ac countability andj ustice. An extraordinary anti mafia campaign continues to shake the fo unda-tions of' postwar Italian political culture; Chile an and Arg-entinean ol'ficers responsible fi>r· terrorizing and ki lling pol i tical opponents have been tried and imprisoned; tw o past president� of'South Korea were recently convicted on charg e� oforderi ng a ma�sacre. Although it is unlike l y that many o rth ese ca m pa igns will result in conviction� or imprison ment (or general am ne�tie� will be decl ared, a� ha� already hap pe ned in Chile and Argentina), the performa tive effe ct of the �tate'� effort �hould not be ignored . What bega n quite n a rrow ly as a �tudy of the transformation of Ea�t bloc socialist re gime� now appears relevant outside the Euro pean context. Indeed, we are witnessing a world movement fo r retributi veju stice: the conviction of wrongdoers and the restoration of the dignity of victims. This world movement is the globali-7.ation of a form of accountability specific to democratic political fo rms.
Unlike distributive justice, which is con cerned with giving persons their proper share, or corrective justice, which is intent on rectify ing harms, retributive justice deals primarily with moral injuries, with wrongs that fr equent ly do not result in material injury or harm. In current usage, "retribution" has come to be associated solely with punishing for offenses (Vergeltung), whereas etymologically the mean ing of the word includes rewarding for good deeds. Only in the course of the twentieth cen tury has the meaning of retribution been re duced to a manifestation of innate revenge motives. Historically, retribution has always been part of a settling of accounts, a tribute 134 restructuring· in l ute 1989 and 1990 could not handle tho number of c l a i m� made concerning past injustices, some people in work units be gan e�tabli�hing Commi��ion� of Vi ndicat ion/ Rehabilitation�. They wore inspired by �ug-g·es tions made at Roundtable discussions in the fa ll of 1989 but wore also responses to demands made by fo rm er victims with in companie� t hem selves. 'l'heir deliberations were not adver�ari al but took the form of an open yet limited inquiry into the nature ofthe wrong, the plau �ibility and ve racity oftho claim, and the po::;si bility to procure remedies. The primary need expressed in their work was for the restoration of a lost dignity, for public recognition of prima rily two kinds of injustice: harms surlcred ei ther directly inflicted by fe llow workers or through the political instrumentalization ofthe workplace bureaucracy ("bureaucratic i l legali ties"). Some of the types of injustices for which victims wanted vindication included criminali zation and imprisonment for "Westflucht" or "Republikflucht" (attempting to flee tho repub lic), "removal and fo rced adoption of ch ildren," "repression, persecution, and judicial illegali ties," and "defamation because of a critical position". Petitioners rarely made claims in the domain of corrective justice: to reclaim proper ty, reassert status, obtain monetary compensa tion -all material harms that the legal system would have fe lt compelled to address immedi ately. Instead most of the claims concerned moral injuries: harms that did not result in readily quantifiable injuries but were nonethe less wrong.
According to Herr Grollmitz, Chair of the Commission for Radio and Te levision that I attended, the fu nction and goal of these Com missions was "to work through the old political burdens of the SED period" ("politische Altlas ten aus der SED-Zeit aufarbeiten"). For the first four years of operation, the Commissions operated in a legal No Man's Land, neither inside nor outside the law, but as nonlaw. Their proceedings and findings were analogous to law but not regulated by law until a "Second Law for Settling SED-Illegality" was passed in 1994.
The Commissions were to determine the validity of the claimants and to propose a rem edy. The most common remedies proposed were eithe r f()J' Jn al lett ers of' apnlog·y ("l�hrener kliirunge n"), adju:-;t ment H of' the penHionH lo:;t , or "econ o m ic compenHation" fin· particular lo:;s es. In the letter;; of' apology, the Commi:;:-;ion f'or Radio a nd Te levi:-;ion repeat edly u:-;ed the ex pression: we "rea ffi rm the political and moral integrity" of' the victi m. It expres:;ed "regret filr the rep reHsionH and diHcriminations," filr "the destruction of'meaningf'u l career deve l o p ment," for "the :;cvcre psychological stress". lL offered sympathy fiJr the suffering caused, and it "con demned the arbit rary meaHure:; employed" to isolate a nd persecute critical voices. J n a reas of the world infl uenced by Christian ity, an a polo gy carries a special wei gh t becam;c an a::;sump tion of personal guilt or sin can easily lead to legal liability. Moreover, in accepting blame for wrongful action, wrongdoers symbolically low er themselves in th e eyes of the i r victims. This contrasts, for example, with the role of apolo gies in J apan, where th ey are more common place but fr equently made to avoid blame and legal liability (Joshua Roth, personal communi cation). The Commission vindicated approxi mately 75 percent ofthosc wh o appealed to it. Tt then made the apologies public by sending them to print media so that either the findings could be challenged or the righting of the wrong acknowledged by the larger social community.
Vindication is a relatively minor concern of justice systems, and public or media discussion of the status of victims of the fo rmer socialist regimes has been largely displaced throughout the East bloc by a discussion of present harms resulting fr om privatization and global market pressures. Ye t the process of vindication offers a revealing example ofhow post-socialist states and societies have dealt with the usually ne glected aspect of retributive justice: rewarding good. The people who appeared before the Com missions cl aimed to be victims of a criminality which was, if not state-sponsored, then at least supported or benignly tolerated by the state. In response, the Commissions engaged in a partic ular form of justice that combines both correc tive and retributive aspects. Often this entailed both compensating the victim for harms (cor rective justice) and rectifying the status of the victim for moral injuries (retributive justice). Their work was the flip side of punishing wrong-doers: the issue of' governmental criminality. Vindication directs us primarily to rcd rcHHing the victim's status and only secondarily is it concerned with the perpetrator. But it i s precisely the relation ofthc victi m to the perpetrator that, as we shall sec, is often the core issue in vindication . For in order to con fi rm the victim's importance through a procedure of' vindication it is often necessary to lower the unjustly elevated status of the wrongdoer. To reestablish the sell� worth and value -the dig nityof' the victim requi res that an event be staged whereby there is a public repudiation of' the message of' superiority that initially caused the diminishment in the vi ctim's worth . This public event seeks, as ,Jean Hampton argues, both to "repair the damage done to the victim's ability to realize her value" and to defeat th e wrongdoer's claim to mastery over the victi m. It does not thereby compromise the wrongdoer's value as a person, but it "confirms them as equal by virtue of their humanity" (Hampton 1992(Hampton : 1686. Both victim and perpetrator arc affirmed as equal in the sense that both arc recognized as agents exercising fr ee will -the minimal condition of humanity.

Punishing Wrongdoing: Transforming Misfortune into Injustice
The task of punishing evil was assigned to ZERV ("Zentrale Ermittlungsstelle Regierungs und Ve reinigungskriminalitat" "Central Inves tigative Office for Governmental and Unifica Zl�RV was charged with investigating what has become known as the "siral'rcchil ichc Bc wiiliigung der Vc rgangcnhcit dcr DDR" (over com ing ofi'reckoning with the CDR's past th rough criminal law). Te chnically, its fu nction is to gather and prepare the evidence for the state, and, in cases involving the GDR, to pros ecu te . ZERV is divided into two divisions: Ref erai 1 deals with unificati on criminality, Refer at 2 with governmental criminality. Unification criminality refers to crime having lo do with the economic background and consequ ences of uni fication, in other words, primarily with crime thai took place after November 1989. About half of the suspects here come fr om the old Lander of the Federal Hepublic, half fr om the GDR In fa ct, most of ZEHV 1's investigations are of suspected criminal activities engaged in jointly by organized criminal gangs fr om the old Federal Republic of Germany, or other West bloc states, and by fo rmer members of the East German state security (Stasi) or fo rmer GDR fu nctionaries in the political parties and mass organizations (ZERV 1993: 4).
"Crime" is a socially constructed category of wrong and unjust deeds; such acts are by defi nition both socially disapproved of and legally prohibited. Needless to say, definitions of crime vary by place and over time, and crime is never merely what is written in penal codes. Deter mining what counts as "crime" is a result of a complex interaction between the public and the state. And it is an interpretive process, involv ing the selection of categories of"wrongness" for investigation, the construction of evidence, and a trial. The public pressures the state to react to wrongness; the state, in turn, prosecutes wrong ness, sometimes in response to public pressure, but always also according to its own dictates, to which the public is asked to respond. Often public pressure will be insufficient to prompt state action, and the perceived wrong will re main a "misfortune." Or, alternately, state ac tion will find no resonance and support in the public, leading the state to avoid or truncate prosecution, and the designated wrong will go unpunished. In either case -of the action re maining a misfortune fr om the public's perspec tive or a designated wrong fr om the state's -the deed will not become a "crime." Shortly after its founding, ZERV 1 orga n i�ed itself' inlo roughly ten different invest igative units, with much overlap between units in sus pects and sources for evidence '? 1) '"l'ransferrub cl" fr aud, 2) property of the former Socialist Unity Party (SED/PDS) and of mass organ i 7.a iions, 3) the Ministry of State Security (Stasi), 4) the Treuhandanstalt, 5) the currency union, 6) "Kommerzielle Koordinierung" (KoKo ), a GDR agency set up to accumulate convertible (West ern) currency, 7) extortion, 8) Western groups of the former Soviet army, 9) embargo violations, and 10) weapons sales. Taken together, these ten units are intended to account for an esti mated total of 26.5 billion D-Mark ($ 17.7 bil lion) in damages between October 1990 and the fa ll of 1993. By the end of 1995, ZERV investi gations were underway for 13.5 billion of this total. Approximately 3 billion D-Mark has al ready been recovered since work began in 1990. ZERV 2 investigates high-level representa tives of the party and government as well as state functionaries who committed crimes while carrying out their offices. These crimes arc acts of violence against people and often involve human rights violations. By the end of 1995, ZEHV2 had investigated 7,414 incidents. More over, 70 percent of all the investigations of ZERV 2, and over half of the overall total of ZERV investigations, have been for either at tempted or completed homicides (Kittlaus 1993: 38). The acts investigated took place over the entire period ofGDRhistory, fr om 1949 to 1989, and the people subject to investigation worked at all levels of the state hierarchy, fr om postal employees to members of the Politburo. Of the 4,691 individual suspects, 213 held high-level posts (first lieutenant, major, major-general, general, ministers of state) (Kittlaus 1994: 29). The Public Prosecutor's Office has made indict ments in three general areas: 1) "attempted and completed manslaughter on the inner-German border," 2) "Rechtsbeugung in acts involving imprisonment or manslaughter though the ju dicial organs of the GDR," and 3) "manslaugh ter, imprisonment, and violation of mail privacy by members ofthe Stasi" (Schaefgen 1994: 151).
By the end of 1994, over 700 criminal inves tigations have either been completed or stopped. Other investigations have been stopped be-cause ZE RV gu the red in::;ul'fi<.:ient ev iden<.:e, the trials we re not clearly in the "publi<.: interest" ("das i.i ffcntliche Interesse"), the susped died, ZERV wa:; unsu<.:<.:essf'ul a t either the indi<.:t ment or trial :;Luge, or be<.:auHe higher <.:ourts overtu rned initial convictions. Calculating and responding to p ubli<.: interest has been a de<.:i sive issue fo r ZE RV, Hince prosecuting without public interest would have little immediate effect on either the inciden<.:e of' crime or estab lishing the pri n cipl e of' ac<.:ountability. Prose cuting against the wishes of' the public would in most <.:ases create the image of persecution of a surrogate v i<.:tim. Hen<.:e, lor ZE RV the issue has not only been of choosing actual perpetrators of crime, but also of <.:hoo::;ing the "ri ght" ones for prosecution.

Ritual Purification under the Rule of Law
Until recently, anthropological contributions to the regulation of violence have come primarily fr om the study of societies without states. Legal regimes with the rule of law differ fr om state less societies in one crucial respect: the core of their legitimacy rests in identifying the real wrongdoer, or at least in a theory that the actual perpetrator has been identified. And with this identification and trial, the state establishes itself as a moral authority acting for the whole community. Alternatively, when societies with out rule of law seek someone to hold accounta ble for the initial offense, they engage in a fo rm of ritual sacrifice or revenge: the first suspect is often replaced by another, and another, in a chain of substitutes? A substitute is actually preferred, notes Rene Girard in a summary and theorization of anthropological studies, since it avoids the principle of perfect reciprocity -an eye for an eye -and therefore the necessity for a cycle of reciprocal acts of revenge that would unleash violence and lead ultimately to a sacri fice of the entire group. This substitute requires a "certain degree of misunderstanding," even deception, so that it appears the god himself is demanding the new (and final) victim. The sacrifice "serves to protect the entire communi ty from its own violence" by suppressing dis sen sions, rivalries,jealousies, and quarrels. It stems the tide of' indiscri m i nate substitution:; and red ired:; violence into ' proper' <.:hanncls," mean ing outside the community and toward some exteriorized individual or group that "la<.:ks a <.:h ampion" (Girard 1977: 8, 10). A substitute victim absolves the group of any fu rther respon sibility to seek redress for the initial crime.
One problem for the rule of law is that the actual perpetrator may be too powerful, or i t may be too unpalatable politically to prosecute him. In that case, the perpetrator cannot be readily exteriorized, cannot be placed "outside" the society. Hence, a major problem for a Re<.:hts staat is determining not only who committed the crime, but also whom is it politically possi ble to exteriorize, to place outside the group. Which ethnic group, political elite, nation, mi nority group, or individual can be held account able for committed wrongdoings without divid ing the political community? Since 1989, each new East-Central European state has invoked the principles of the rule of law, which has committed them to prosecuting only the "a<.:tu al" wrongdoers. But they cannot prosecute all wrongdoing,and their decisions are also embed ded in political processes, meaning that they have also been struggling with the question of which offenses to define as criminal, whom to hold accountable for them and therefore worthy of prosecution.
During the period of invocation of the princi ples of the rule of law fo llowing the regime changes in 1989, some East-Central European regimes have nonetheless relied on substitute sacrifices for many purposes: in order to fight corruption, to open institutions to renewal, to assuage victims of the old regimes, and, of course, to avoid holding actual wrongdoers ac countable. Their choice of sacrificial groups has been predictable and hardly random: external states or internal enemies, most often gypsies, Jews, and perceived or "exteriorized" fo reign ers. Association with "communism" has also served as a symbolic reservoir for pollution and therefore a source of substitutes for actual wrongdoers. Thus communist parties or com munist parties members have at times been targeted for purification. At this very general level, one can identify two dimensions to the sacrificial process that hold for each ofthe new East-Central E11ropean regi mes: ( 1) identit: ying possible culprits to hole! accountable, who then were vetted tin· complicity with the secret po lice, tried li n· crinws, or si rnpl.y vi lilied in media campa igns, and (2) assuaging injured p arties through rehabil itation, vindication, compensa tory payments, publicat ion of their stories, or othe r similar measures.
The work of ZERV and of the Rehabilitie rungkommission must be understood within th is political-th eoretical context. By i nvoking the principle�; of the rule orlaw, ZI�H.V is obligat ed to holrl w rongdoers accountable, and it must make sure that the individual::; it prosecutes are not substitute sacrifices. In fa ct, in order to con tribute to the specifi c fo rm orlcgitimacy we call "democratic," it must hold those in the center of the regime accountable. Many of ZE RV's investigations began in response to citizen complaints or tipoffs. During all the probes, the "Staatsanwalt" (public prosecutor) is expected to remain neutral and is bound by law to investigate on bchalf ofboth the defend ant and th e state. Police investi gators fo llow up an initial tip or complaint by interrogating suspects or questioning witnesses to determine whether the act ("Tat") constitutes a crime ("Verbrechen"). An "Ermittlungsrichter" (judge who deals with investigations) may be asked to issue search warrants or arrests. If the police gather sufficient evidence to warrant a trial, then the prosecutor is compelled to proceed only if the case is in the public interest. Considered "guardians of the law," prosecutors are not independent, as are judges, but act in the public interest as "Beamten" (civil servants), super vised by the Ministries of Justice of the differ ent provinces. ZERV's primary task in its investigations is to transform misfortunes into injustices. To gether with public prosecutors, ZERV creates the possibility to claim "injustice" by construct ing a narrative that sequentially links crime, deed, and suspect (agent of crime). The legal name for this narrative is indictment ("An klage"). Ajudge need not accept the grounds for this indictment, but can either reject it alto gether or reconstruct its legal reasoning. In any case, this narrative is to be constructed fr om the evidence which, in turn, must be uncovered and gat hered . In addition to evidence that links the deed to the crime, ZERV must lind an agent to hold accountable for the crime. If both condi tions arc not met, then the misfortune of the victim docs not become an injustice, and the deed is irrelevant to criminal law. Natu ra l ca tastrophes such as earthquakes and flood�;, lor example, can be proven to have occu rred, but rarely can they be said to be caused by human agency. With nobody responsible for the deed, there is no crime and thcreiorc can be no pros ecution. But with sufli.cicnt evidence linking a deed to a formal "crime," and with a suspect to hold accountable for the deed, one can turn any misfortune into an injustice.
The fate ofZERV is closely intertwined with that of the Gauck-Authority, which I will only mention briefly here. For ZERV the archives of the Gauck-Authority have been by far the most important source in the investigation of eco nomic crimes, which is primarily the domain of unification criminality covered by ZERV 2. Both the Gauck-Authority and ZERV were set up to perform a uniquely German postwar fu nction: "Bewaltigung der Ve rgangenheit" (reckoning with the past). In this case, the past is that of the GDR. The Gauck-Authority was charged with a general enlightenment about this past through personal and historical research, ZERV with a reckoning through the mechanisms of criminal justice. The public has been extremely divided about what this reckoning means and in whose interests it takes place, which has meant a continuous politicization and public scrutiny of ZERV's work. Without public sup port, the kind of reckoning with the past en gaged in by both the Gauck-Authority and ZERV would end. Hence both Gauck and Kittlaus (for ZERV) must convince the public of the need for the continued existence of their offices. To this end, they are frequent contributors to newspa pers and appear often on radio and television. The public prosecutor's office has fo llowed tra ditional German legal practice of not publiciz ing its own work except for reports on indict ments and trials made by the Ministry of Jus tice itself directly to the press.

Measuring the Effectiveness of Retribu tive Justice
How might one evaluate the ef'fcctivcnm;::; o f' attempts at ret ributive j u st ice? Ef'f'octivc crim inal law, I have been argu i ng, establishes the state as a m ora l agent re presenting the entire community. It docs th is by reiterating the prin ciples of' accountability for injustice:; as part of an attempt to ree�;tabli�;h the dignity of victims. Have the crim inal inve�;tigation�; and trials in Germany been ef'fccL ive in reckoning with a past? In Settling Account�;, the book on which this e�;�;ay i�; based, J analyze th e trial and conviction of' Wo l fgang Vo gel (Borneman 1997: 80-96). Dr. Vogel wa�; the of"licial l�ast German lawyer responsible for "humanitarian ques tions," including arranging the exit of East German citi:> :cns to West Germany. Jn this ca pacity, he was charged with extorting property fr om hi s cl ients in exchange f(>r their release (or sale) to the West Germans. For purposes of length , I m ust omit analysis of specific cases here, although I will turn to th e reaction to Vo gel's conviction later. Instead, I shall make some summary statements about the perfor mative effects of entire complex of state inves tigation, public defense, and perhaps most im portant, of the historical record left for fu ture generations by the prosecution.
A complete list of the results of investiga tions, indictments, and verdicts is nowhere to be fo und. But even a partial list indicates that the results cannot be inferred fr om the num bers alone, which in any case are changing. In the fall of 1994, the head state prosecutor in Berlin, Christoph Schaefgen, drew up an initial list. At that time he concluded that on the basis of the numbers alone, the results "look meager" (1994: 159). From October 3, 1990, through the fall of1994, ZERV 2, charged with investigating governmental criminality, had opened 3,000 cases, of which 100 had resulted in indictments.
In only thirty cases were suspects convicted, making a one percent conviction rate, 30 convic tions out of 3,000 cases opened; or, if one meas ures convictions per indictment, the success rate is 30 percent (Der Tagesspiegel, October 1, 1994: 10). Mt er this release, the press along with most intellectual commentators widely critici:�.cd the work of' ZERV and the public pro�;ecutor.
A sub�;equent evaluation by Berlin' In sum, there have been tens of thousands of investigations, there have been hundreds of indictments, there have been some convictions holding both minor and major ligures account able, and u greui deal of money ha::; been recov ered from economic crime. By and large, howev er, ihe:;e succe:;:;es huve been too lew in number and too cosily in Lime and attention io convince a large number of people, e�;pecially lega l ex pert�; and politicians in the new Gcrmuny, of'ihe necessity and appropriuicness ol' the criminal inve:,;ii gaiion:; and pro:;ccution:;.
'J'hc head Berlin prosecutor, Chri�;toph Schacfgcn, responcll:l io public rc:,;ervaiions by arguing thai "j ustice is obligated to ihc princi ple oflegitimacy and not that of public or polit ical opinion." He suggests that ihc task of jus tice here lay in "enlightenment and in the prosecution ofcriminaliiy and criminals who in exercising political power violated the law of their own states, not in reparations ("Wieder gutmachung") for wrong thai originated in the fo rmer GDR" (1994: 159). Clearly, a fu ll account of the results of reckoning with GDR's past through criminal law means more than listing trial results. To fo cus on trial results alone, that is, on the conviction or acquittal of suspects, places jural work in an economistic fr ame of reference. Efficiency ofjustice becomes the pri mary criterion by which results, or the "ration ality" of jural process, are evaluated. Such a fr amework may be useful in the domain of distributive justice, where outcomes most fr e quently involve material goods whose value can be clearly measured. But it is the wrong fr ame work for retributive and corrective justice. Employing this logic for all types of justice claims, the political scientist Jon Elster (1992: 15-16) went so far as to argue that since "essen tially everybody suffered under Communism," and "because it is impossible to reach every body, nobody should be punished and nobody compensated." Surely, comprehensiveness and outcomes consistent with rational actor logic are not what criminal justice is about. Justice is about morality and the principle of legitimacy, which in turn rest not on efficiency but on various cultural standards. The question is not whether criminal justice is efficient but whether it is effective in reckoning with a past. It is important not to impose a single efficiency standard on justice systems, for the particular means by which effectiveness is measured var-140 ics. T would th ink thai most justice systems have never been particularly ef'ficieni, ;;i nee in most places ofihe world most crimes arc never solved, mo�;i �;u:;pected criminal�; go free, and most harmed individuals do not find remedies. Effectiveness -and democratic effectiveness in particular -on ihe other hand, is a cultu rally and temporally variable standard, and a mat ter for noi speculative bui empirical rc�;carch. My argument has been that democratic ciTec iivcncss relic:; on the reiteration of particular �;iandards ofaccountability. ln the German case, have the criminal investigations and trial:,; been efficacious?
The head of ZERV, Manfred Kittlaus, justi fies the criminal investigations in terms of three desired effects: 1) "Rechtsgefuhl" defined as "the direct effect on the people's respect fo r legality," 2) trust in the "soziale Marktwirt schaft" (social market economy) by dealing with "organized economic crime," and 3) improving the "appearance of Germany abroad"? Respect for the legality ("Rechtsgefiihl") can be obtained, writes Kittla us, only by fu lfilling the ''Verpflich tung" (obligation and commitment) to the "10,000 victims and the 100,000 GDR citizens who in 1989 worked to bring about the collapse ofthe morally, politically, and economically bank rupt GDR-system" (Kittlaus: 1994: 1 Leicht (1996: 1) argued that the major ity of those who claimed they had been extorted by Vo gel were motivated by the desire for profit, by the chance to get their property back cheaply and that because many had given false testimo-ny, th ey would now in tu rn be churgcd by the public prosecutor. "The great ext ortionist had been actually the GDR-Stute it::;elf . ... IYogell was neither a re::; i ::; ter nor a good Samaritan. He was a tool, not reopon::; i bl c for making tho deci sions . ... ls justi ce served," concl uded Leicht rhetorically, " by punishing tho hammer wh ile the smith goes fr ee?" r nan ed itorial written fo r the German public, Donald Kobl it;,: (1996: 5), fo rmer legal advisor for tho U.S. State Depart ment in Berlin, accused the "inexperienced and poorly counoellcd" public prosecutors of mak ing "pseudo-legalistic and completely ahisiori cal accu::;ations" . . He characterized the Vo gel trial as a "comical episode" in the pursuit of justice, but he then dismissed this characteri zation, since Vo gel was a "decent man" who had to sit six months in prison awaiting a trial for charges that were based on a "silly and mean spirited version of history." In my own discus sions with East Germans, I found thai most either had no opinions or were very conflicted about what they actually thought of the verdict in Vo gel's trial. Only those wh o, as petitioners to leave, had personally experienced Vo gel's use of power, adamantly insisted on his guilt. Even those who have long opposed this reck oning through criminal justice, such as the senior editor and owner of Die Ze it, Marion Gratin Diinhoff(1995: 1), the political scientist Egan Bahr (1993), and the legal historian Uwe Wesel (1995), for example, had reservations about ignoring the fe elings of the victims. On the whole, however, they concluded, as did the political scientist Claus Leggewie and legal scholar Horst Meier (1992: 71), in an otherwise extremely insightful article, "that the balance of GDR things must be in the first instance a societal business -meaning fr ee of the state . ... Public discussion ... is always more valuable than all of the paltry results of criminal justice taken together." But, we must ask, why would a criminal trial preclude or in some way fo re close public discussion?
In pleading for an end to the criminal reckon ing and a general amnesty, Wesel wrote, "The single serious argument against an amnesty is the fe eling of the victims. But everyone must make a contribution to the new beginning. Also the victims." Instead, he proposed a law of rm;titution "fi>r which the sentencing of perpe trator:; ii:i no oubotiiute." lie a l so in::;isted thai the actual "reckoning with the past ... is ihe ia::;k of h i otoriano anyway, who are already at work. ... The Honccker trial has brought noth ing new to l igh t ihai was not already well-known" (1995: 3). Finally, he argued for an end to criminaliza ti on through an amnesty, drawing a parallel to the West German amnesty of Nazis in the 1950s, which, he claimed, was instrumental in the Weoi German success story. The question he addresses but did not ask is: whose trust in the new West German law is he most concerned with, that of the perpetrators or the victims? Both groups are actually small in number. Re gardless of with whom one identifies, it is u n likely that amnestying suspects before they are brought to trial, before there is any finding of innocence or admission of guilt, will contribute to coming to terms with the past.
What Wesel seems to confuse is the task of the historian -to bring something new to light, to make the known unknown -and the task of the justice system -to reestablish the dignity of the victim and to prevent fu rther wrong-doing through the reiteration of principles of account ability. The latter task cannot be readily accom plished by historians whose (idealized) fu nc tion is diligent research, the uncovering of new evidence, constructing of events and interpret ing them in new fr ameworks. Rather, reestab lishing dignity and principles of accountability would seem to require a process more similar to a criminal trial than to historical research, namely, a public participatory process, like that of Dr. Vo gel's trial, where fo llowing an open hearing one draws a thick line between the victim and those responsible for the injustice.
Moreover, laws of restitution, like Wesel pro poses, invariably rely on monetary dispensa tions, so that again an economistic fr amework is imposed on a jural solution. Jewish victims of the Holocaust who received monetary sums fr om the West German government in its Wie dergutmachung policy have by no means re nounced the use of criminal justice to hold individuals accountable for criminal actions. A law of monetary restitution is desirable (and indeed, has already been passed) but not in itself sufficient for settling accounts. Individu-als must also be held accountable fin· wrongdo ing, and the staLe, I have been argu i ng, as the on l y institutional moral repre::;eniaiive of the entire com munity, has an obligation here. The state':; obligat ion i::; not only a h erme ne u t ic one but also a pcrformaiive one. It:; p rim a ry con cern i::; with the con::;oquence::; of what it doc:; fiH· legiii m ating tho principles of its rule.
A uriefcompari::;on of::;iaie::; thai did not take this obligation to engage in retributive ju::;iicc seriou::;ly ::;ugge::;L::; ::;onw direct con::;equcnce::;. In those ::;iaies thai did not hold anyone ac countable, where it was a::;sumcd thai the sys te m was at fault and chan gi ng "the ::;y ::;Le m ," whatever that is, would in itself be sufficient, there h as been a fi.lrm of sacrifice or ritual purification in reckoning with the past, but in each case the earmarked victim for sacrifice has been difl" ereni. In C zccho::; l ovakia no serious internal criminalization took place, rather the Czechs criminalizcd the Slovaks , who in turn criminalized the Czechs. Such practices of"eih ni c cl eansing" arc expressions of a dr ive fo r revenge and retaliation , in which perpetrators and victims of the past strike at each other in ever new coalitions. Responsibility for past prob lems was exteriorized, projected onto an "out side" that had at one time been part of oneself.
As soon as this split between Slovaks and Czechs was finalized, debate turned to the old question of the grounds for the sacrifice immediately after World War II of almost three million Ger mans, or individuals identified as such, who were driven fr om their homes. These Sudeten deutsche living in Germany, or young people who want to identify themselves that way and who had never personally suffered this harm, in turn called for retaliation.
In Romania, the Ceausescu couple and the Politburo on top served as the objects for inter nal purification, though in the first moments of euphoric reaction most European observers did not even notice that this sacrifice was accompa nied by a scapegoating of Romanian Gypsies and Hungarians on the bottom. Partly through these substitute sacrifices the old power struc ture was actually preserved. It is unlikely that much will change with the victory of opposition al groups in the most recent Romanian election, since no political party made the idea ofretribu-

142
Lion an issue. In l{u ssia, C hechnya was sacri ficed , or the Chechens exteriorized , as a means to ::;ccurc power back in Moscow, though the Hussian leader::; still want Lo control w ha t they idcniif:y as external to th em. In Yu go::;lavia, archenemies Croatia and Serbi a united in sac rifice Bosnia and i t appears they have largely ::;ucceeded. These regi mes "secured" their rule not thro u gh the l egi ti mate domination of the rule oflaw but in violent acts of exclusion and abjection of an internal other. Moreover, an active, non-elected clique of forme r perpetra tors and victims directly incited and mani pu lated the violence. To be sure, the Croat:; and Serbs did not a ct alone but with the complicity of the international commu n ity, includ ing the aid of irredentist populations in Europe and the United States. But if we fo cus solely on the role ofthcjural "tran sition s," in as much as the word applies to this situation, they were most fr e quently subordinated Lo strategic political op eratives, which in turn were directed by former perpetrators who readily identified new scape goats -th e Bosnian Muslims, interethnic cou ples whom the ethnonationalists could treat as substitute victims.
In none of these states did fo rmer victims receive much recognition; there was little or no retributive justice and internal cleansing; ac countability was shifted fr om the political cent er to some posited exterior, which was then sacrificed. My emphasis here on the lack of retributive justice and on jural process is not meant to deny the significance of other varia bles in generating the violence of different tran sitions. In Hungary, Slovenia, and to a large extent in Poland, some people claim no sacrifice was necessary since state fo rm was already a "rule of law" and therefore the transformation was not fr om one type of regime to another but within the regime. This may be true. And, indeed, the relative inclusiveness of these re gimes is to be applauded. But one should not overlook the reappearance of antisemitism in Poland, especially given its history of dealing with internal divisions through demarcation fr om its minorities, including a history of recur rent pogroms. And in Slovenia, state fu nction aries have had it easy escaping personal ac countability and responsibility for their own errors by po inting t he fi nger at their "dange r ous and barbarian" neigh bor:; und fiH·mer fe der al com rades in Serb i a , Croaiiu, and Bosnia.
The pol itical iransfiJrmation in Germany since 1989 is a part of' this pol itical and psycho logical dynamic in the fiH·mer l�ast bloc. l{ees tabli:; hing t he dignity of' vict ims required a prosec u tion of pe rpetrators among the old elite for thei r rnora llegal wmng:;. Hut :;ince the state':; legiti m acy i:; now Lied to the principle:; of' the rule of' law, it rnu:;L al:;o, e:;pecially in the hours of't. hei r initial invowtion, avoid crirninal izing po litical ly expedient substitute:;. lL mu:;L prosecute and puni:;h adu a l w rongdoer:; , with the understanding that fo r a variety of pol itica l and p rocedural reason:; it will not be able to punish them all. The old F. ast German political elites, Professor Vo gel included, do not fa ll into the category of substitute victims for they arc being held accountable for what they actually did. Nothing more , nothing less. Wh en, as has most frequently been the case, it is impossible to convid following th e procedu ral protections of the pri nciples ofthc rule oflaw, th e new state has not thereby failed, for each trial must be viewed alongside other prosecutions. The ma jor significance and efficacy trials, then , is not a guilty verdict. Rather, trials demonstrate through their performance the ongoing necessi ty of reiterating the state's moral principles.
Effective criminal law is not to be equated with efficient justice. Effective criminal law estab lishes the state as a moral agen t representing the entire community by reiterating the principles of responsibility and acconntability for injus tices as part of an attempt to reestablish the dignity of victims.
That the German justice system has been effective is attested to by many other kinds of evidence, of which I will briefly elaborate three.a All evidence will be circumstantial and sympto matic, for it is impossible to isolate retributive justice fr om all of the other variables contribut ing to establishing the state as a moral agent for the entire community. I am, however, claiming that a direct relationship exists between the use of retributive justice and lack of violence. My analysis must be tempered by the fa ct that we are less than a decade into the transforma tions of justice systems in the Ostblock states.
The ef'fecis of judicial ef'fin'Ls can and do also work a:; memories to be recovered long after the a<.:Lual events. S uch has been the effect or the N u rem borg Tri als in Germ a ny, which were large ly rejected as e f'fi caci ous d ur·ing th e 1 960:; but now are considered a milestone in estab lis hin g principles or accountabil i ty. Th ey have had a longterm effect in Germ a ny that few would have predicted five year:; after the trial:;.
Wh ore, exactly, does one locate the situa tions in which retributive justice is received? Find i n g th i:; l ocation is a fo rmidable task give n thai the primary descriptive evidence to which 1 am appealing is to the lack of' violent demon stration s directed against one's neighbors, the w illingn ess to defer in social conflicts to the state's courts and administrative bodies. On the surface, the mqjor contrary evidence to be explained would be the significant increase in violence perpetrated against fo reigners in both 1991 and 1992: more than 2,000 acts, including the bombing and burning of homes of asylum seekers and the 17 murders by right-wing groups, of which eight of the victims were for eigners. At that time, the Office ofConstitution al Protection estimated that political parties of the radical right in eastern and western Ger many had about 40,000 members, of whom 6,000 were ready to use violence. Equally if not more disturbing than these specific acts of murder was the acceptance, often extending to support, of this violence by a large number of German bystanders.
This violence quickly subsided, however, largely in response to a concerted effort by the state to investigate and isolate these perpetra tors, by a legal clarification (largely symbolic) of the ambiguous and much abused political asy lum laws (Germany has no official immigration policy), and by large numbers of individual citizens to identify with the victims and the groups to which they belonged. In the fa ll of 1992, several million East and West Germans demonstrated publicly their opposition to this violence, organizing peaceful marches and de manding that politicians and police take reso lute action to stop the violence. Following these demonstrations, politicians and significant num bers of relatively apolitical citizens were spurred into action against this new wave of right-wing violence. To be sure, this action alone die! not stop the v iolcncc, filr at the Ra me time the pol icc and other governmental institutions began tak ing scriuu�:�ly th i�:� violence. One may critici;,e the kind�:� of'ihc variou�:� re�:�pon�:�es, but they are clear indications of' a successfu l refusal iu ex teriori;,e a pari of' the social group. An d they were in fa ct effective in p reventi n g the violence fi·o iT I escal ati n g. J an 1 nut arguing here that the usc of retributive justice contributed directly to the lessening of' viol ence against fiwcigners . I am claiming thai the Rtaie's engagement in retributive justice in this same period helped instill trust in legal ity, and therefore estab lished the space in whi ch th ai part ofthe public opposed to other-di rected violence could mobi lize the larger public for social peace. Public opinion polls lend support to this contention.
Public trust in the j udi ciary has steadily risen parallel to the use of retributive justice. Of all the institutions in the united G ermany, eastern and western Germans trust the Constitutional Court the most, fol lowed closely by th e other courts and the police. Least trusted are th e press and the political parties. In the middle and far below the judicial branch are the legis lative branch and the military (Gabriel 1993:3-12).
During the last six years, I have attended manypublic forums in Berlin and i have watched many of the televised discussions. These staged events serve as catalysts for reactions in homes or among small circles of fr iends in bars and restaurants. When opinion pollsters or political scientists remark on the silence concerning these issues, they are merely registering the final effects of intensive social involvements: watching, listening, and sometimes talking. "Silence" in this context is not passivity or disinterest but a measured response to a public and private working-through of present inju ries and past wounds. To explain this response in terms of the old culturalist cliches that Ger mans historically just fo llow orders, they are a prototype of subaltern peoples does not ade quately explain the remarkable changes in post war domestic arrangements and public culture (Borneman 1992). Admittedly, these changes are more extensive in the metropolis Berlin than in smaller provincial settings. Ye t the cultural proccsReR and eveniR in Berlin exert a rl iRproporiionat.e influence on na tiona] develop ments, disproportionate in numbers, in the setti ng of' cultural ire11ds, and in rnedia cover age.
A good illuRiraiion ofihe audience reception to retributive justice is the changing reaction to the f�1ie of particular perpetrators and victi ms in the public imagination. 'J \vo of the most prominen t publ ic figures identified in l 989 as perpetrators, Erich Honecker and Al exander Schalck-Golodkowski, have by 1996 disappea red from p ubl i c attenti o n . ln the public mind, both figures served as synecdoches for the entire regime. When in the summer of 1996 T asked people what they thought of Honcckcr, those in the East always mentioned embarrassment at having submitted to his petty rule, along with being the subj ects of hi s political repression , a fa ctor those in the West fo regrounded in their comments. Nobody mentioned the base motives of hate, resentment, or revenge. By 1996, people who had expressed so much anger at Schalck Gol odkowski (who was acquitted in his first trial but awaits others) were now satisfied that he was still under a kind of house arrest and they were relatively unconcerned about his eventual fa te. As to the voices of victims, in 1995 and 1996 the public esteem of Barbel Bohley and other fo rmer dissidents grew, acclaimed by people across the political spectrum, as they were acknowledged to be speaking fr om a posi tion of dignity based on past moral actions on the side of"the good". In other words, an actual closing of the books is occurring, a thick line is being drawn, but only through a ritual purifica tion of the center.
This closing of the books does not imply that memory of the past will be accurate and contin uous but merely increases the likelihood that fu ture generations will be skeptical about at tempts to use these memories to mobilize retal iations against other persons or groups. lt there fo re decreases the likelihood of retributive vio lence much as it affirms the principles of the rule of law. In the meantime, many reminders of this past will be erased. Not every memory of harm can or should be permanently memorial ized. Honecker's house in the Wandlitz com pound north of Berlin, for example, which I visited in the summer of' 1996, is surrounded by a barbed wire fence f'uffing-quickfy in disrepair. The small pctly-bou rgcoi�;-looking single-fam i ly houses or the f(H·mcr Pol iLbi.i ro mem bers have been renovated and integrated into a large state-run health spa. Al l that remains that might rcminrl one of its former usc is the clun ky-lookin�, l a rge metal entrance �ate. Durin g the sumrncr, a s mall van is parked outside selling maps of the fo rmer government com pound, a few books, and GDR memorabilia. Large numbers of private condominiums arc under construction, but the settlement is now centered around an already-com pleted six-sto ry health spa, complete with fountain, swim ming pool, cafe, and well-kept strolling paths in the fo rest. People on crutches recovering fr om accidents or needing longterm physical therapy wander the groun d s with their entire fam ilies in tow. When I asked where Honecker's house was, people directed me to it, but it is totally unmarked. I engaged a couple leaving the house in a brie f conversation; they expressed no an ger, no resentmen t. The complex is theirs to recover in fr om an automobile accident. The historical kindling used to ignite future fires is gone. In November 1994, ZERV published a small, slick, green bulletin of eleven pages. It is meant both to inform the public about the work ZERV is already doing and to involve citizens in the criminal justice process by asking for their help in investigating criminal activity. It lists a tel ephone number to call to obtain or provide information, which in the first 12 months fo l lowingpublication resulted in 150 callers (ZERV 1996: 8). For the bulletin's cover ZERV (1994) chose the slogan: "When victims are silent ev erything always begins again fr om the start" ("Wenn die Opfer schweigen, beginnt alles im mer wieder von vorn"). Coming fr om the police, this reminder of the past repeating itself serves as a kind of self-critique (cf. Buruma 1994). It suggest that the current German reckoning with the injustices of a particular past through criminal law is a counter-experiment to the silence-induced terror which engulfed Germa ny, Japan, and Italy in the 1970s -a terrorism that can be understood as retaliation for the crimes committed by the Axis powers in World War lT! In other words, to a void a cycle or retributive violence it may be wise Lo go th roug-h a l onger phase of painful historical reckon ing with the past, that i s , o f retri butive j u �; Licc in the present.

The Context of Retributive Justice
The current wave ofrcLribuLivcjusticc is part of a global ritual purification of the center of political regimes that seck democratic legiti macy. Of course, not all staLes, filr exam ple, Miloscvic's Serbia or Castro's Cuba -seck dcm ocratic legitimacy. Those states which try but fa il to achieve democratic political fo rm, despite positive intentions, will likely fe el compel led to turn to dictatorial means of assuring their dom ination. For them, retributive justice will prob ably not be justice at all but precisely "Vcrgc l tungsjustiz," a governmental fo rm of revenge? But for those that do seck democratic legitima cy, only with this purification can the "rule of law" be successfully invoked. Only with an appeal to principles embodied in public "ru lc by law" instead of personal "rule by men" can th e new states in East-Central Europe establish themselves as legitimate democratic authori ties. Further, this invocation is not a one-shot injection of justice into fo rmer state socialist settings, a return of errant governments to political normality; regime purification is nec essarily a periodic process.
One of the most dramatic changes in regime dynamics fo llowing World War II has been in the nature of and balance between internal and external legitimacy. Since 1945, international law has had such dramatic effects on national law that it can no longer be seen as purely external to it. In the last several decades, one can also witness the introduction of alternative definitions oflegal agency within international law, with shifts fr om the individual as part of a territory or people to a principle grounded in the dignity of the individual independent of citizenship. Especially fo llowing the signing of the Helsinki accord by East bloc states, the dignity principle of recognition had major inter nal effects on the legitimation dynamics within socialist states. These states became increas ingly sensitive to their own citizens as well as to world opi n ion, and to worl d politi cal, legal, and economic reg·i mcs. This new density of inter pe netration of global and local norms calls for an a na lys i s wh ich has been absent i n a cultur alist account -that f(wegrounds not cultural spatialization but the temporality of legal re gimes and the l egi ti mati on of states.
As to the culturalist explanation, I might aga i n o tTer G e rmany a::; an example that cou nters this logic. Even before the revolution in November 1989, th e East German regime had begun to beh ave le::;::; a::; a ::;elf-con tained un it or in a "bloc" m ode with other Soviet satellite states, and to pay more attention to international legal norms. The peaceful trans fer of power within the regime can at least partly be attributed to a growing respect for the principles of "the rule of law". And after the dissolution of the state in October 1990, jural reform, while occurring in fu lly chaotic circum stances, went nonetheless relatively peacefully.
Contrary to the myth of the vengeful German judiciary, German judges, both those fr om the West and retrained Eastern ones, have been extremely reluctant to agree with public prose cutors' charges of regime criminality. The most successful prosecutions have not been for typi cal or "normal" fo rms of wrongdoing but for excesses in the performance of public duties. In the trials of border guards, for example, even though shooting was nominally justified under GDR law, those whose action was so intrinsical ly heinous that no positive law could be invoked to vindicate it were nonetheless convicted. In those cases, judges appeared to rely on the fa mous Radbruch fo rmula, that positive law must yield to a higher law when the contradic tion between positive law and justice reaches an "unbearable proportion." This justified a prosecution for excess without violating the principle against retroactive application of the law. While proving excess happened to be easier for clearly defined and identifiable crimes, like embezzlement, than for political oppression, or spying, or restricting the fr eedom of movement of citizens, the post-unity judiciary was ex tremely wary of sentencing "substitute victims," or of holding "small fish" accountable while letting the "big ones" go fr ee. In this, by contrast to the judiciaries in both German states fo llow-146 ing World War II, I th ink they have been suc cessful .
Although the German usc of law to settle accounts has h appened u nde r the s i ngula r con dition of unity with another state and ha�-; been of an unusually large scale, it still must be situated within both East-Central E uropean invocation of the rule of law and the global movement iur retributive justice. The tra n::;fur mations fr om state socialism to democratic re gimes presents us with a "diagnostic event" (Moore 1994: 365) an appropriate site to exam ine the question: what is peculiar about. the invocation of liability in democratic regi mes? Do they require a specific form of accountabi li ty? What the eastern German transformation shares with the other East-Central European ones is a dominant concern with the invocation of principles of accountability which socialist regimes had rejected and which are central to democratic regimes. For eastern Germany this invocation is necessary to establish the state as a moral authority with a monopoly on the legi ti mate use of violence. What it shares with the global movement and therefore with West Ger many, Western Europe, and the United States is a need to reaffirm these principles through a kind of ritual purification intrinsic to democrat ic regimes. In other words, the mole must search for whodunnit.
I have made two theoretical assumptions which, due to the short period of transformation examined here, approximately five years, can not be demonstrated. First, invocation of the principles will never be final, for these princi ples must be continually reiterated as part of a process where accountability is made central to the sphere of the political. This "political," in turn, is culturally and historically variable.
Because human memory of injustice is selective and has no natural end, the invocation must be seen as a temporal process which also will never end. Consequently, the invocation ofthe rule of law in each of the East-Central European states, and in eastern Germany, has its own timeline and trajectory (depending on e.g., institutional arrangements, the role of historical memory in social processes, the perceived extent of wrong doing). At the same time, these states are also very much interconnected as part of a global system of' nat ion-states; each is striving to in voke the :-;amc sci of' jural principles to obt ain internal and exicrnal lcgi ii maiion. This means that any analysis must bu l u n cc u univcrsalisrn about th e process of' invocation with a re lati v ism about the spcci fie cultural deiai ls of' i n stal lation. Whereas the procesR of' invocation is universal , th e chronology, institutional arrange ments, and practi ces involved arc case-s pecific.
Second, although both criminals and victims are cultu rally and historically variable catego ries, which in periods of' intensive change can easily switch places, it will nonetheless be nec essary in a legal regime of the rule of law type to reatlirm the distinction between the two. This is necessary both to reaffirm the poss i bi l ity of the community to perform justice and to make possible the fo rgetting of injury. Without this reafJi rmation and fo rgetti ng, no moral au thority, especially that of a democratic state, is realizable.
My own argument about the principles ofthe rule of law has been both descriptive and pre scriptive. Not only do regimes transform in different ways, but some states are transform ing better than others. Better because they are more successful at establishing themselves as legitimate moral authorities that provide the possibility of justice. Better because it is more likely that those political communities which invoke the principles of the rule of law will not disintegrate into cycles of violence. What is the key to such a transformation, which, I repeat, has no endstation, but requires intermittent ritual purification of the political center? The key is the state's assumption of accountability for retributive justice: rectifying past injuries through prosecution of wrongdoers and resto ration of the dignity of victims. This means neither that the criminal justice system is the sole arbiter of all conflict nor that it will elimi nate all violence and wrongdoing. Instead its legitimacy, iftied to a democratic political fo rm, must be based on a relocation of accountability in the center of the regime itself-no displace ment to the periphery, no scapegoating, no substitute victims -through periodic ritual purification of wrongdoers. Hence my prescrip tive conclusion: the longterm legitimacy of dem ocratic states, to the extent states in East-Ccntral l� uropc ta ke this fo rm, will rc:-;iccntr:.d ly on belief' in the moral ity expressed by the princi ples of the rule of law.
Al though I have focused on the usc of' retrib utive justice in democratic states, my conclu sion s a rc equally relevant to non-dcmocmiic regimes . By extension, my argument would predi ct thai trials to correct wrongdoi ng perpe trated by the "center" in monarchies and dicta torial states will often be counter-productive, leading not to justice, but to cycles of revenge . If' poli ti cal regi mes arc not founded on principles of accountability, their legal systems will tend to fu nction as arms of the executive branch of government, violating one of the fu ndamental principles of the rule of law. Wi thout formal separation of the executive and judicial and guarantees ofthe independence of the judiciary, jural systems will most likely be used to harass opponents of the regime. The wrong people will be rewarded, the wrong people punished. Such injustices will delegitimate the political regimes which fail to invoke the principles of the rule of law, and some groups of people will likely fe el compelled to use their own devices to seek substitute victims. The dynamics I describe arc becoming commonplace; lacking a higher au thority which one can trust, the current inves tigations and trials in Rwanda, Burundi, and Nigeria, for example, will probably turn into political farces. Leaders will find substitute victims, aggrieved parties will perform acts of vengeance, possibly turning to fo rms of modern terrorism. In Bosnia-Herzegovina, retributive justice has thus far precisely been absent, de spite the presence of an international fo rce that is to effect a transformation in the legal and political culture. If there is no legal retribution in Bosnia-Herzegovina, it is likely that injured parties will pass on to their children a sense of obligation to seek personal revenge. I am hope ful that these comparisons will provide new directions for descriptive and theoretical work on legal systems. Moreover, perhaps the in sights I present here will contribute to the global invocation of the principles of the rule of law.
f(u· German-American cooperation, a MacArthur Fou ndation g-nmt. to Cornell University's Peace �tudim; J>rog-ra m, und Cornell Uni ve r:-; ity's ln::;ti tut.e f(u· Eu ropean Studies. Much of t.hiH article was written while at. the Rockefell er l?oundation Rellatio Cent er, whieh I thank f(u· their incredible hm; pi t .ality. Amo ng the people J wish t.o t han k, moRt. of all l am indebt ed to Stc t:1 n ScndcrR for di:-;eu ssionR and erit.icism, t.o ,Jack Skarb ins ki fill' research assistan ce, to Mi ch ae l Week and Profes sor Ilona Stolpe f(u· ind ispensabl e support and cril.i ci s m in different. :-;tag-c:; of the rcRea rch ancl to Thomas Ha u sch i ld lor i m po rta n t co r recti o n s . I am also grateful for the opportunity to present p:u-ts ofth is material fi rst in 1996 at t.h c i\mer ica n Ant hropologi ca l Meeti n gs in a panel in honor of Sally Falk Moore, then in talks at Stockholm University, the Univers i ty of Berge n, the Univer ;;ity of Oslo, the Uni vers i ty of Cope nh agen, the Queen's University of Belfast, the University of Hannover, th e University of'l'cxas at Austin, Cor nell University, the U nivcr;; ity of Michigan, and Humboldt Uni vers i ty in Berl in . Lastly, my debts to all those jural and political officials in Germany for interviews and materials arc too numerous to list, as are those to friends in Berlin who listened to my ramblings and answered my questions. I thank them all. 1. Much of the information presented here comes fr om an interview conducted on June 15, 1993, with Herr Grollmitz, Chair ofthe Rehabilitierungs kommission des Rundfunk und Fernsehen der DDR, the Commission ofVindication of the fo rmer state television and radio, the last acting commis sion of this sort in the former GDR. 2. Calculating accurately the number of potential victims of injustices in the Russian Occupied Zone/ GDR is of course impossible, but they number in the hundreds of thousands. Estimates of the number of individuals who disappeared, were de ported, or given prison sentences for political rea sons between 1945 and 1990, to name merely the most severe fo rms of victimization, range fr om 400,000 to 500,000 (Schwanitz 1991: 33;Weber 1991: 41, 43, 45). By February 1991, petitions for legal rehabilitation in Eastern Germany num bered 40,000 (Gohler 1991: 29-30). 3. Many other fa ctors which have contributed to the lack of violence in the transformation of state fo rm in Germany include. Above all, the well-developed German social welfare system cushioned the diffi-148 cult economic tra n s i t ions. H en ce des p i te d isp lac ing-more than halfofthe workfitrcc in the East a nd crea ting u nem p l oy m ent of from 12 to 40 percent, depe ndin gon how it is calcu l ated , thc stnndard -of living-oflhc vast m ajo r i ty of peopl e in the East h as actual ly i m proved . Germ a n d e m ocra tic political institutions and the po l i tical party ::;yst.cm also play an importa n t role. Even the Party of Demo cratic Soci al i::;m, the renamed Socialist U n i t.y Par ty, has channeled the voices of'those who have felt disenfra nchised into the insti tutional stru ctu res of the West German state. Finally, th ere arc the non-jurnl insti tutions which hnvc tn ken up the task of reckoning with the GDR's past, especia lly histor i a n :-; th ro ugh the investigation:; of the par I iam c n tary E n quetc-Kom mission, pr i vate citizens who have rend Stasi documents about thei r own pasts made available through the Ga uc i,-Author ity, nnd n p rol iferation of newspaper, telev ision, and p u bli c litrums lor the discussion of discon tents.