Transitional jurisprudence: the role of law in political transformation.

• Author: Teitel, Ruti

Revolutionary political change challenges the paradigms used to understand and legitimate law in ordinary times. Professor Teitel argues that conventional political theory has not adequately analyzed the distinctive nature of justice during periods of political transformation. Drawing on recent transitions around the globe, she argues that law and justice in such periods take on a simultaneously backward- and forward-looking character; extraordinary legal responses operate to mediate such periods. In ordinary times, adherence to the rule of law limits the law's reach; however, in periods of transition, successor regimes often struggle with the question of whether to honor immoral commitments of their predecessors, and at the same time seek to construct a societal willingness to honor law under the new regime. Adherence or nonadherence to prior law expresses the relationship of present to past regime and a normative shift. The criminal law in such periods offers an especially important venue for transitional decisionmaking. its normative work is complicated where repression has been carried out by entire regimes, because criminal justice generally ascribes individual responsibility. in recent years, a distinctively transitional criminal sanction that combines partial punishment with investigation of past wrongdoing for public dissemination and education has developed. Constitutionalism also takes on unique dimensions in the context of political flux. Because successor constitutions often broker transitions, they must be understood in terms of the political expedients they have navigated, as well as the lasting principles they seek to enshrine. Professor Teitel argues that the transitional lens may profitably inform the interpretation not only of constitutions in today's emerging democracies, but also of the American Constitution, Analysis of the role of law in transition points to a distinctive new paradigm of jurisprudence constituted by and constitutive of liberalizing political change.

At a time of political movement from illiberal rule, questions of transitional justice remain largely unaddressed. 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 a repressive past and its prospects for creating a liberal order?

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.(1) The prevailing approaches yield limited positive accounts that miss the particular significance of justice claims in periods of political change. Such theorizing also fails to explain the relationship between normative responses to past injustice and the prospects for liberal transformation. This Article attempts to move beyond prevailing theorizing to explore legal responses in periods of political transformation. It suggests that these legal responses play an extraordinary constituting role in such periods.

Within comparative political theory, the dominant approach is to explain a state's legal responses in terms of the political and institutional constraints of the transition. The dominant approach considers the search for justice an epiphenomenon, explained in terms of the balance of power.(2) From the realist perspective, the question of why a given state response occurred is conflated with the question of what response was possible.(3) Law is considered a product of political change. The path of the transition is thought to explain the prevailing balance of power, which in turn purportedly explains the legal response. However, to say that states do what they can does not explain the great diversity of transitional legal phenomena. To say states do what is possible, as in the realist account, conflates the descriptive account with its normative conclusions.(4) The connection between a state's response to the transitional problem and its prospects for liberal transformation remain essentially unjustified. Nor is the idealist account satisfactory. From the idealist perspective, the question of transitional justice generally falls back upon universalist conceptions of justice.(5) Yet this approach misses distinctive features of conceptions of justice in extraordinary periods of transition.

The realist/idealist antinomy on the relation of law to politics shares affinities with liberal/critical theorizing about law and politics. In liberal theorizing, law is commonly conceived as following idealist conceptions unaffected by political context,(6) while critical legal theorizing, like the realist approach, emphasizes law's close relation to politics.(7) Again, liberal/critical theorizing about the nature and role of law in ordinary times does not account well for law's role in periods of political change.(8)

Moving away from the prevailing approaches, adopting a largely inductive method, and exploring an array of legal responses, I describe a distinctive conception of law and justice in the context of political transformation. Several important legal responses discussed herein arise out of the contemporary wave of political change, including the transitions from Communist rule in Eastern and Central Europe and the former Soviet Union, as well as from repressive military rule in Latin America and Africa. Where relevant, I draw upon historical illustrations, from ancient times to the Enlightenment, from the French and American revolutions through the postwar and contemporary periods. I begin by rejecting the notion that the movement toward a more liberal democratic political system implies a universal norm. Instead, the Article offers an alternative way of thinking about the relation of law to political transformation. 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 normative relation between legal responses to repressive rule, conceptions of transitional justice, and our intuitions about the construction of the liberal state.

What might the study of legal responses following repressive rule tell us about the conceptions of justice in such periods? The central question of transitional justice arises within a distinctive context, a shift in political orders.(9) The "transitional" period begins right after the revolution or political change; thus, the problem of transitional justice arises within a bounded period, spanning two regimes.(10) In the contemporary period, the use of the term "transition" has come to mean change in a liberalizing direction; accordingly, the transitions discussed here have a concededly normative direction.(11) In transitional periods, there are continuities among these legal responses. The next question is what rules of recognition govern transitions. Here, my aim is to shift the focus away from the traditional political criteria associated with liberalizing change to take account of other practices, particularly the nature and role of legal phenomena.(12) I explore the phenomenology of transition to suggest that there is a close tie between the normative shift in understandings of justice and law's role in the construction of transition.(13)

Because transitional justice is justice within defined political parameters, it is limited and partial. Understanding the particular problem occasioned by the search for justice in the transitional context requires entering a distinctive discourse, organized by dilemmas inherent to these extraordinary periods. The threshold dilemma lies in the context of political transformation: Law is caught between the past and the future, between backward-looking and forward-looking, between retrospective and prospective. Transitions imply paradigm shifts in the conception of justice; thus, law's function is inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order, even as it enables transformation. Ordinary predicates about law simply do not apply. In dynamic periods of political flux, legal responses generate a sui generis paradigm of transformative law.

The thesis of this Article is that the conception of justice in periods of political change is extraordinary and constructivist: It is alternately constituted by, and constitutive of, the transition. The conception of justice that emerges is contextual: What is deemed just is contingent and informed by prior injustice. Responses to repressive rule inform the meaning of adherence to the rule of law. As a state undergoes political change, legacies of injustice have a bearing on what is deemed transformative. To some extent, the emergence of these legal responses instantiates transition.(14

I will explore the role of law in periods of political change by looking at three areas that most reflect law's transformative potential: the rule of law, criminal justice, and constitutional justice. Although these areas are generally thought to be discrete categories of the law, periods of political shift illuminate their affinities(15) and reveal how the law's response in such periods defies the usual categorization. These practices offer not only a way to delegitimate the political opposition, but also a form of legitimation of the present, more liberal, regime.(16) In each Part, I will show how various legal responses in periods of substantial political change reflect similar developments in the law, enabling the construction of normative shifts. Adjudications of the rule of law reflect understandings of legitimacy; criminal justice establishes wrongdoing; and transitional constitutionalism defines the state's...