what response is possible. 3 Such theorizing clarifies why transitional justice is a vital issue in some countries but not in others. 4 The prevailing balance of power, structuring the "path" of the transition, is thought in turn to explain the legal response. However, to say that regimes will "do what they can" does not well explain the great diversity of transitional legal phenomena. Indeed, to contend that, as in the realist account, states do what is possible simply conflates the descriptive account with its normative conclusions. 5 The connections between a state's response to the transition and its prospects for liberalization remain largely unjustified.

From the idealist perspective, by contrast, the question of transitional justice generally falls back on universalist conceptions of justice. 6 Ideas of full retributive or corrective justice regarding the past are considered necessary precursors to liberal change. While, in the abstract, certain legal ideals may be thought necessary to liberal transition, such theorizing does not account well for the relation of law and political change. Ultimately, this approach misses what is distinctive about justice in times of transition.

The realist/idealist antinomy on justice in transition, like liberal/critical theorizing, divides on the relation of law and politics. Whereas in liberal theorizing, dominant in international law and politics, 7 law is commonly conceived as following idealist conceptions largely unaffected by political context, 8 critical legal theorizing, like the realist approach, emphasizes law's close relation to politics. 9 Again, neither liberal nor critical theorizing about the nature and role of law in ordinary times accounts well for law's role in periods of political change, missing the particular significance of justice claims in periods of radical political change and failing to explain the relation between normative responses to past injustice and a state's prospects for liberal transformation.

This book moves beyond prevailing theorizing to explore the role of the law in periods of radical political transformation. It suggests these legal responses play an extraordinary, constitutive role in such periods. Transitional Justice adopts a largely inductive method, and, exploring an array of legal responses, it describes a distinctive conception of law and justice in the context of political transformation. Transitional Justice begins by rejecting the notion that the move toward a more liberal democratic political system implies a universal or ideal norm. Instead, this book offers an alternative way of thinking about the relation of law to political transformation. Important phenomena here discussed relate to the contemporary wave of political change, including the transitions from Communist rule in East and Central Europe and the former Soviet Union, as well as from repressive military rule in Latin America and Africa. When relevant, the book draws on historical illustrations, from ancient times to the Enlightenment, from the French and American Revolutions through this century's postwar periods up to the contemporary moment.

The interpretive inquiry proceeds on a number of levels. On one level, I attempt to provide a better account of transitional practices. Study of the law's response in periods of political change offers a positive understanding of the nature of accountability for past wrongs. On another level, I explore the nor-

-4-

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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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