CHAPTER ONE
The Rule of Law in Transition

This chapter explores the various legal responses to illiberal rule and the guiding rule-of-law principles in these times. The attempt to adhere to the rule of law during periods of political upheaval creates a dilemma. There is a tension between the rule of law in transition as backward-looking and forward-looking, as settled versus dynamic. In this dilemma, the rule of law is ultimately contingent; rather than grounding legal order, it serves to mediate the normative shift in justice that characterizes these extraordinary periods. In democracies, our intuition is that the rule of law means adherence to known rules, as opposed to arbitrary governmental action. 1 Yet revolution implies disorder and legal instability. The threshold dilemma of transitional justice is the problem of the rule of law in periods of radical political change. By their very definitions, these are often times of massive paradigm shifts in understandings of justice. Societies are struggling with how to transform their political, legal, and economic systems. If ordinarily the rule of law means regularity, stability, and adherence to settled law, to what extent are periods of transformation compatible with commitment to the rule of law? In such periods, what does the rule of law mean?

The dilemma of the meaning of the rule of law transcends the moment of political transformation and goes to the heart of the basis for a liberal state. Even in ordinary periods, stable democracies struggle with questions about the meaning of adherence to the rule of law. Versions of this transitional rule-of- law dilemma are manifest in problems of successor justice, constitutional beginnings, and constitutional change. 2 The rule-of-law dilemma tends to arise in politically controversial areas, where the value of legal change is in tension with the value of adherence to the principle of settled legal precedent. In ordinary periods, the problem of adherence to legal continuity is seen in the challenge posed by political and social change over the passage of time. Accordingly, the ideal of the rule of law as legal continuity is captured in the principle of stare decisis, a predicate of adjudication in the Anglo-American legal sys-

-11-

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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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