Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 19: Transitional justice, transitional constitutionalism and constitutional culture

Gábor Halmai


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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