This chapter provides the context, a broad introduction and the essence of each of the chapters in the book.
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Duncan French and Louis J. Kotzé
Rule of law is a Sustainable Development Goal (SDG) seeking to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels (SDG 16). It enjoys wide global support, and within the United Nations system the rule of law is considered paramount for achieving other sustainable development goals, such as the rights to water, food, and energy. While there is much merit to this view, this chapter argues that the rule of law may at times be the single biggest obstacle for achieving the other SDGs. The chapter starts by highlighting the main rule of law theories from which SDG 16 draws, namely formal, procedural and substantive. All three theories require different kinds of certainty that is at odds with the uncertainty of the socio-ecological ‘real’ world. This uncertainty is caused mainly by the lack of scientific data and understanding of biological systems, economic and social risks, and the dynamic and complex nature of socio-ecological systems. If science cannot be certain of how the socio-ecological world operates or will operate, neither can the (rule of) law that seeks to regulate the human–environment interface. The chapter concludes by discussing two categories of legal mechanisms that may be used to reconcile the (rule of law’s) need for certainty, and the uncertainty of the socio-ecological world. In the first line of inquiry it suggests that environmental regulations should be designed to alleviate scientific uncertainty by being adaptive. In the second line of inquiry it suggests courts are required to exercise their discretion in evaluating evidence and interpreting the law. These two mechanisms to tackle scientific uncertainty require major concessions from the rule of law but they need not be its demise. The rule of law trickles down to questions like how well and openly the decisions are reasoned.
Joanna R. Quinn
The chapter traces the development of transitional justice (TJ), focusing on four of the most widely used instruments of TJ (criminal prosecutions, reparations, amnesty and truth-telling). It then outlines the development of TJ approaches and instruments around the world. Those same four commonly used instruments are utilized as a means of comparing experiences across continents. Finally, the chapter considers the ‘growing pains’ of the scholarship and practice of transitional justice. The questions raised have arisen because the field has matured to the extent that critical questions can and must be asked. Six of these are considered: deepening international engagement; the effect of contagion; simultaneity and the problems it brings; the call to address economic, social and cultural rights; the limits of what transitional justice can actually address; and the parameters of the transition in question. Origins and development of transitional justice; Europe; Latin America; Sub-Saharan Africa; Asia.