Edited by Gary Jacobsohn and Miguel Schor
Chapter 19: Transitional justice, transitional constitutionalism and constitutional culture
Abstract: The chapter discusses the theoretical challenges that legal regulation of transitional justice in transitional constitutions raises when it attempts to reconcile past abuses of constitutionalism. The broader implications of the topic are the challenges that transitional constitutionalism faces when it regulates transitional justice measures. But for both transitional constitutionalism in general, and transitional justice in particular, a certain preexisting constitutional culture is required. Hence, before dealing with the specific constitutional regulations of transitional justice, the chapter discusses the role of constitutional culture in transitional constitutionalism in the specific case of transitional justice. The chapter deals with the transitional justice measures, which are the most interesting from the point of view of constitutional theory: criminal prosecutions and the retroactive application of criminal law, since these are closely related to the principle of the rule of law, emphasized in the texts of new transitional constitutions.
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