Academic journal article The Yale Law Journal

Transitions

Academic journal article The Yale Law Journal

Transitions

Article excerpt

No one interested in contemporary comparative politics can be unfamiliar with the notion of transition. What Ruti Teitel calls "transitional jurisprudence," whose central topic is "the role of law in political transformation,"(1) has become a major genre of contemporary legal analysis as the frequency of such transformations has become well-nigh dazzling, in countries and regions ranging from Albania to Uruguay and from El Salvador to South Africa.(2) All of these countries represent the shift from dictatorship or, as in the case of South Africa, an oppressive herrenvolk democracy--to a more liberal democratic order. Thus, South Africa's President, Nelson Mandela, has referred to the "remarkable movement in various regions of the world away from undemocratic and repressive rule towards the establishment of constitutional democracies."(3) There may be examples of transitions in the other direction--one may well wonder if this is not underway in contemporary Russia--but, for obvious reasons, they do not generate the same interest among liberal political theorists and constitutional theorists as do the other, presumably far happier, transitions.

I consider Bruce Ackerman to be America's greatest theorist of transition, at least with respect to the fundamental legal questions attached to transitional regimes.(4) Though his primary interest is transition within the American constitutional system, he is scarcely uninterested in many of these other transitions, about which he has written a significant, albeit short, book.(5)

Ackerman's enterprise has both empirical and normative dimensions. That is, the first contribution that Ackerman makes is to a better understanding of how constitutional change has in fact occurred, especially in episodes that can be easily described as transitional for the United States.(6) The empirical reality that these changes scarcely fit any orthodox understanding of Article V generates the concomitant necessity, for anyone trying to construct a plausible normative theory of constitutional legitimacy, to take account of the actualities of change rather than continue to take pious refuge in civics-book accounts of the process. Ackerman, of course, presents a legitimating account that allows us at once to understand and then to celebrate the creativity of Americans as constitution-makers and constitution-revisers. Facts and values end up conjoined in an ultimately happy unity, at least so far as the United States is concerned. To be sure, things are not all perfect, but they have been consistently getting better.(7)

A central question facing any and all transitional regimes is the stance to be taken toward the miscreants of the now happily discredited political order. Americans(8) may underestimate the importance of this question, both empirically and normatively, because of some peculiar elements that may have made our own history particularly happy (or, at least, less unhappy than that of other countries that have undergone significant transitions). Begin with the elemental fact that the losers in the colonial civil war that broke out in 1775 and concluded in 1783 were kind enough to slink away to Canada and England. Early Americans did not then have to decide what to do with the Loyalist leaders who had cast their lot with King George III and his minions. Less fortunate successor regimes, who must confront former oppressors as flesh-and-blood presences, must always decide how much to settle scores from the past, as against attempting to integrate the losers by a tactful silence about what has happened. Should one attempt to discover the specifics of past misconduct and then seek to engage in corrective justice by punishing those who engaged in such behavior? Or is it better to adopt a policy of self-conscious blindness?

Ackerman almost wholly ignores this issue in his otherwise remarkably detailed analysis of Reconstruction politics and constitutional theory. Should, for example, Robert E. …

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