Edited by Tom Ginsburg and Rosalind Dixon
Chapter 4: Transitional Justice and the Transformation of Constitutionalism
Ruti Teitel* This chapter aims at exploring the mutual influence of transitional justice and constitutionalism. Constitutionalism herein is understood broadly, not just as the positive law of written constitutions but as the set of fundamental legal and political norms and practices that are constitutive of the polity, identified by Aristotle as the politeia. The chapter proceeds by tracing landmark political and legal developments in various regions in relation to constitutional change, and by looking to relevant transitional justice developments, conceived in terms of the legal responses to the past regime on the road to liberalization (Teitel 2000). The predominant strands of constitutional theory in the twentieth century, particularly in the Anglo-American world, modeled constitutionalism as a form of pre-commitment and constraint on governmental or state action, usually in the name of individual rights. This form of constitutionalism is also reflected in a vision of separation of powers within the state and sometimes a federal division of powers, checks and balances (Dorsen et al. 2010). Here we can see the significant influence of the US experience, given its contribution of a constitutional structure with restraints internal to the constitution and institutionalized in governmental structure, including judicial review, separation of powers, checks and balances. This model was widely exported often notwithstanding context – political realities on the ground (Tushnet 1999). The content of contemporary constitutionalism is also being shaped through developments in transitional justice, that is, systematic responses to the wrongs of the prior regime, or which occurred in the course of the...
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