Introduction

In recent decades, societies all over the world--throughout Latin America, East Europe, the former Soviet Union, Africa--have overthrown military dictatorships and totalitarian regimes for freedom and democracy. In these times of massive political movement from illiberal rule, one burning question recurs. How should societies deal with their evil pasts? This question leads to others that explore the question of the relation of the treatment of the state's past to its future. How is the social understanding behind a new regime committed to the rule of law created? Which legal acts have transformative significance? What, if any, is the relation between a state's response to its repressive past and its prospects for creating a liberal order? What is law's potential for ushering in liberalization? 1

The question of the conception of justice in periods of political transition has not yet been fully addressed. Debates about "transitional justice" are generally framed by the normative proposition that various legal responses should be evaluated on the basis of their prospects for democracy. 2 In the prevailing debates about the relation of law and justice to liberalization, there are two generally competing ideas, the realists versus the idealists on the relation that law bears to democratic development. Either political change is thought necessarily to precede the establishment of the rule of law or, conversely, certain legal steps are deemed necessarily to precede political transition. The privileging of one developmental sequence or another derives either from disciplinary bias or from the generalization of particular national experiences to universal norms. So it is that in political theory the dominant account of how liberalizing transition occurs comprises a sequence in which political change comes first. On this account, a state's transitional responses are explained largely in terms of the relevant political and institutional constraints. Justice seeking in these periods is fully epiphenomenal and best explained in terms of the balance of power. Law is a mere product of political change. Political realists generally conflate the question of why a given state action is taken with that of

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Transitional Justice
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Contents xi
  • Introduction 3
  • Chapter One - the Rule of Law in Transition 11
  • Chapter Two - Criminal Justice 27
  • Chapter Three - Historical Justice 69
  • Chapter Four - Reparatory Justice 119
  • Chapter Five - Administrative Justice 149
  • Chapter Six - Constitutional Justice 191
  • Chapter Seven - Toward a Theory of Transitional Justice 213
  • Epilogue 229
  • Notes 231
  • Index 285
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