Research Handbook on Transitional Justice
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Research Handbook on Transitional Justice

Edited by Cheryl Lawther, Luke Moffett and Dov Jacobs

Providing detailed and comprehensive coverage of the transitional justice field, this Research Handbook brings together leading scholars and practitioners to explore how societies deal with mass atrocities after periods of dictatorship or conflict. Situating the development of transitional justice in its historical context, social and political context, it analyses the legal instruments that have emerged.
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Chapter 4: Transitional justice's impact on rule of law: Symbol or substance?

Padraig McAuliffe

Abstract

Although it is commonly assumed that transitional justice is inherently restorative of the rule of law, the return of the rule of law it apparently heralds is a much wider and more contingent phenomenon. In transitional justice scholarship and policy documents soliciting support for projects in the field, the rule of law is presented as a broad narrative of progress from the dominance of force to the judicialization of politics, primarily viewed through the lens of a single defining idea, namely an almost exclusive focus on legal and non-legal responses to human rights deprivations broadly understood. This complements, but falls far short of, the conception of the rule of law in large reconstruction missions where the rule of law is conceived of in a more programmatic way as an admixture of institutions, culture and norms. Given what we know about the enduring nature of weak rule of law in post-conflict states, it should not be assumed that transitional justice automatically contributes anything beyond the symbolic to institutional reconstruction or the process of fostering a cultural commitment on the part of rulers or the ruled. Justice is but one virtue of the rule of law – policy-makers and practitioners need to separate justice conceptually from the rule of law if either is to be pursued with clarity. Rule of law; democratization; reconstruction

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