CHAPTER SEVEN
Toward a Theory of Transitional Justice

This book has explored two questions: What legal approaches do societies in transition adopt in responding to their legacies of repression? and What is the significance of these legal responses for these societies' liberalizing prospects? We are now in a position to examine what light Transitional Justice sheds on these questions and, more generally, on law's role in periods of far-reaching political change. In exploring states' legal responses to their illiberal legacies, Transitional Justice pursues an interpretative, historical, and comparative method in order to draw synthetic conclusions concerning what these practices convey about the conception of justice at such times. What emerges is a pragmatic balancing of ideal justice with political realism that instantiates a symbolic rule of law capable of constructing liberalizing change. This concluding chapter thus analyzes the legal phenomena discussed throughout this book in terms of a theory of transitional justice that bridges ideal conceptions of the rule of law and the contingent political exigencies of particular cases.

Legal measures during such periods follow a distinctive paradigm, guided by rule-of-law principles tailored to the goal of political transformation. The analysis undertaken in this book demonstrates the conceptual and practical channels through which an extraordinary paradigm of transformative law helps to construct liberalizing change. But it also goes further, arguing that law maintains an independent potential for effecting transformative politics. The various legal responses explored in the preceding chapters reveal common features in their nature and functions--and thus ramifications for an analytically coherent conception of transitional justice that transcends particular cases. Transitional justice's paradigmatic rule-of-law principles are intimately related to these periods' quintessential and defining feature, namely the grounding within society of a normative shift in the principles underlying and legitimating the exercise of state power. Accordingly, the understanding 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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