Transitional Justice and the Rule of Law: The Perfect Couple or Awkward Bedfellows?

Abstract

The dominant scholarly assumptions are that transitional justice is a pre-condition for establishing a rule of law-based society after conflict or repression, and that transitional justice and the rule of law are mutually-reinforcing phenomena. Though the imperfect conditions of transition invariably give rise to difficult dilemmas over justice with imperfect solutions, literature in the field has downplayed or ignored the long-term impact on the administration of justice in the transitional state of the tendency of transitional responses to past human rights abuses to readily depart from the core values we associate with the rule of law. As noted in Teitel’s study of the rule of law’s relationship to transitional justice, this tendency is manifest where criminal accountability is suspended so as not to imperil the transition or where due process is circumvented in the idealistic and over-zealous pursuit of idealized transitional dividends through trial, truth commission and reparation. As transitional justice scholarship moves from moralphilosophical and jurisprudential preoccupations to greater empirical and interdisciplinary analysis, the sweeping normative assumptions of the past are increasingly being questioned. The article argues that though such acts or omissions may be excused by the exigencies of transition and contribute to the development of the conditions where the rule of law can prosper, liberalizing societies are better served by understanding these deviations from what we understand as full legality as deviations and not as manifestations of a fluid and contingent transitional rule of law.