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Alphen aan de Rijn: Wolters Kluwer. Reconciling Privatization with Human Rights. Antwerpen: Intersentia. Oxford: Oxford University Press. Aldershot: Ashgate, p. Antoine Buyse and Michael Hamilton. Cambridge University Press, pp. Geckova, A. Madarasova, Reijneveld, S. Zhidas Daskalovski and Marija Risteska. Libertas, Timothy Waters. Oxford University Press forthcoming. Heyse and M. Mills under review. Wittek and M. Balbo, M. Mills, L. Heyse, and R. Heyse and R. Heyse and J. Don't forget to check for any Black Friday free shipping offers! Looking to save at NuMe? Check here for the official Columbus Day sale!

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Expired Coupons Recently expired coupons sometimes still work, so feel free to give these a try. Promo Code. Get coupon code. Tame frizz, add volume, or nourish your luscious ringlets with a NuMe coupon code. For the past 10 years, NuMe has relied on the knowledge of experienced hairstylists to innovate salon staples such as blow-dryers and curling irons. NuMe also liberates locks from build-up and preventable damage with shampoos, conditioners, and styling products. Treat your tresses right by viewing the NuMe coupons below. The Berlin court found not only that the border policy did not comport with the prevailing social understanding of law but also that the prior understanding of law was consonant with that of the West.

The guards stood at a geographical and juridical border. This treatment signaled an illegitimacy of regulation of the border in its legal culture. In the transitional context of political upheaval, the judiciary constructed the understanding of legal continuity. What makes law positive? Prevailing theorizing about the rule of law posits that among the conditions for law is that it be known. In transitional periods, there is commonly a large gap between the law as written and as perceived.

What makes law positive is the popular perception in the public sphere. This understanding broadens, indeed democratizes, sources of legality with societal involvement in the constitution of legal culture. Indeed, in the contemporary media age, at any one time there may well be multiple sources of law, as well as numerous forms of publication that overshadow the written law.

Indeed, as public belief in prevailing political systems wanes, one might expect this gap to widen, leading to the transition. The Role of International Law Another mediating concept of the transitional rule of law is international law. International law posits institutions and processes that transcend domestic law and politics. Local courts rely on these international understandings. The potential of this understanding of international law gained force in the postwar period. A jurisprudential debate arose, particularly in the United States, over whether postwar trials convened at Nuremberg and Tokyo were in keeping with the rule of law.

International law served as a mediating concept to mitigate the dilemma of the rule of law raised by successor justice in transitional times and to justify the legality of the Nuremberg trials against concerns over retroactivity. In the post-Communist cases discussed above, the controversy over the attempt to revive old political prosecutions was ultimately resolved by turning to concepts of international law.

For example, in its review of a law proposing to reopen political cases related to the uprising, the Constitutional Court of Hungary reasoned that reopening such cases was discontinuous with prior law. Such discontinuity, the Constitutional Court said, threatened the understanding of legality in the successor period; there was no principled way to break selectively with prior law.

Such continuity was considered to exist in international legal norms, such as the postwar Geneva Convention Relative to the Protection of Civilian Persons in Time of War,37 which norms overrode domestic law. A similar decision was taken in Poland invalidating the extension of statutes of limitations, other than for those offenses considered violations to international human rights.

The framing of the rule-of-law dilemma easily shifts from the antinomies of positivism and natural law. Grounded in positive law, but incorporating values of justice associated with natural law, international law mediates the ruleof-law dilemma. An illustration is the concept of crimes against humanity, discussed further in the chapter on criminal justice, suggesting conceptually opposite and yet related values, in the universalized normative response to persecution epitomizing evil in varying cultural contexts.

In so doing, it mediates the transition. International law principles serve to reconcile the threshold dilemma of law in periods of political transformation. This understanding of the rule of law as antipolitics is a common theme throughout the contemporary transitional controversies discussed above.

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Other cases in the region suggest similar judicial interpretations of the rule of law. In elevating a law that would have extended the time for prosecution of crimes committed under prior rule, the Czech Constitutional Court upheld it on the basis that it would serve the goal of undoing past politicized punishment policy and administration of justice.

Yet, controversies over transitional justice in highly politicized contexts present hard cases for adherence to the rule of law. Despite radical po- 22 Transitional Justice litical change, the aim is rule of law not primarily motivated by politics. Transitional jurisprudence reveals a shining vision of the rule of law as antipolitics. The Transitional Judiciary In periods of political transformation, the problem of legality is distinct from the problem of the theory of law as it arises in established democracies in ordinary times.

There is a working out of core questions about the legitimacy of the new regime, including the nature and role of the transitional judiciary. The choice of the principles of adjudication implies a related question about where, as an institutional matter, the work of transformation should lie: judiciary or legislature?

This is the question to which I now turn. The transitional justice dilemma arises during periods of substantial political change. The challenge was less severe of the postwar transitions than of the contemporary movements from Communist rule, periods of simultaneous economic, political, and legal transformation. In these periods, newly founded constitutional courts have borne the institutional burden of establishing new understandings of the rule of law. A similar transformative response can be seen in other recent transitions, such as in South Africa.

When this question arose in the contemporary post-Communist transitions, the judiciary assumed the decision-making responsibility. Political theorists often distinguish liberal from illiberal regimes by their constitutions; the role of transitional constitutionalism is discussed more fully in chapter 6. Although the Communistera constitutions enumerated rights, these were largely rights on paper that were rarely enforced.

So it was that, after Communism, the mere passage of new rights charters would not produce a sense of transformation in the rule of law. Responding to this distinctive legacy of injustice are the dozen constitutional courts to enforce the new constitutions. The constitutional courts assist in the transformation to rule-of-law systems in a number of ways.

Over time, access to the courts could enable popular input into constitutional interpretation, developing a societal understanding of limited government and individual rights protection. Popular access to courts for individual rights enforcement is a potent symbol of a new governmental openness. In much of the region, broad jurisdictional rules allow abstract judicial review and access to review by political actors, such as the president of the country, or by minority factions of the legislature.

Through transformative adjudication, the transitional judiciary deploys activist principles of judicial review toward normative change and a more liberal rule-of-law system. Transformative adjudicatory practices raise a crucial question: Insofar as the transitional judiciary bears the burden of the transformation of the rule of law, to what extent are such practices compatible with the role of the judiciary in established democracies?

In democracies in ordinary times, activist judicial decision making is generally considered illegitimate, largely for two reasons. First, retroactivity in judicial decision making challenges the rule of law as settled law. Our intuitions about the appropriate site of lawmaking depend on implicit assumptions about democracy and democratic accountability that ought not be automatically applied to illiberal regimes nor to regimes moving away from such 24 Transitional Justice rule.

In established democracies in ordinary times, our intuitions are that transformative lawmaking should occur by legislation rather than by adjudication. The judiciary is constrained from creating law, for such lawmaking is considered a departure from the general predicate of democracy, majoritarian lawmaking. Periods of political transformation are frequently accompanied by radical legal change.

The most recent wave of political change correlating with economic transformation in the post-Communist changes implied major reforms of preexisting law. In such periods, the transitional legislature frequently is not freely elected and, further, lacks the experience and legitimacy of the legislature operating in ordinary times. This concern was raised, for example, in the postwar debate over the establishment of the rule of law. In the positivist position, the burden of legal transformation was thought properly to fall on the legislature, while the natural law position assumed a transformative role for adjudication.

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Whereas in ordinary times, making law in a case-by-case fashion may well appear too slow and too variable, in transitional times, judicial decision making is often relatively faster than the legislative process, which may be slowed down by a compromised past or political inexperience. The question of what institution is most competent and legitimate is contingent and will depend on the particulars of predecessor legacies of injustice in that country. Finally, transformative adjudication is self-regarding. By changing adjudicatory principles and practices, institutions compromised by their decision making under prior rule can transform themselves.

This self-regarding institutional mechanism is particularly pertinent when the judiciary supported prior repressive rule. Theories of adjudication associated with understandings of the rule of law in ordinary times are inapposite to transitional periods. Our ordinary intuitions about the nature and the role of adjudication relate to presumptions about the relative competence and capacities of judiciaries and legislatures in ordinary times that simply do not hold in unstable periods.

The cases dis- The Rule of Law in Transition 25 cussed above demonstrate an extraordinary role for courts exercising principles of transformative adjudication. In periods of political change, the very concerns for democracy and legitimacy that ordinarily constrain activist adjudication may well support such adjudication as an alternative to an even greater politicization of the law. Transformative Adjudicative Practices: Some Conclusions This chapter began by positing that there is a special dilemma in the adherence to the rule of law in periods of political change. The ordinary understanding of the rule of law as adherence to settled law is in tension with transformative understandings of the rule of law.

I now consider what normative rule-of-law principles are associated with adjudication in periods of political change. In these extraordinary periods, as discussed above, rule-of-law norms do not constitute universals. The tensions posed by adherence to the rule of law in these periods are reconciled through a number of mediating concepts. Legality in such periods is socially constructed; in some part, it is judge-made.

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Exploration of precedents in such periods suggests that the understandings of the rule of law are constructed within a transitional context. By cabining politicized uses of the law, this rule-of-law principle guides interim legal decisionmaking on the road to democracy. Further, the transitional rule of law implies an implicit critique of the dominant theories regarding the nature and role of law. In liberal political theory, a long-standing precept of the rule of law is that lawmaking through adjudication is conceived as somehow neutral and autonomous from politics.

The principle of transformative adjudication perhaps poses a more serious challenge to critical theorizing of law. Critical legal theorizing has been criticized for going too far in collapsing law and politics. As such, this theoretical approach has often lacked explanatory power for why, or in what circumstances, law has any distinctive claim on society. Although critical legal theorizing has laid claims to a diminished rule of law as a general matter,61 the above discussion suggests that this is most true in extraordinary political circumstances of transition.

Within transitional democracies, there is a place and a role for bounded political judgment. Legal processes enable measured rationalized change. Beyond adjudication, normative change constructive of a new legality is also effected through other forms of law.

Thus, the role of criminal sanctions ordinarily limited to punishing individual wrongdoing is greater during transitions, as such legal responses challenge past state criminality and therefore go to the core illegitimacy of past rule. These legal responses serve to condemn and delimit abuses of past state power. In the next chapter, I turn to the uses of criminal justice in transformative periods. The contemporary wave of transitions from military rule, throughout Latin America and Africa, as well as from Communist rule in Central Europe and the former Soviet bloc, has revived the debate over whether to punish.

Punishment dominates our understandings of transitional justice. This harshest form of law is emblematic of accountability and the rule of law; yet, its impact far transcends its incidence. Review of transitional periods reveals that successor criminal justice raises profoundly agonizing questions for the affected societies, so that its exercise is often eschewed. The debate over transitional criminal justice is marked by profound dilemmas: Whether to punish or to amnesty?

Whether punishment is a backward-looking exercise in retribution or an expression of the renewal of the rule of law? Who properly bears responsibility for past repression? To what extent is responsibility for repression appropriate to the individual, as opposed to the collective, the regime, and even the entire society? The central dilemma intrinsic to transition is how to move from illiberal rule and to what extent this shift is guided by conventional notions of the rule of law and individual responsibility associated with established democracies.

A core tension emerges here in the use of law to advance transformation, as opposed to its role in adherence to conventional legality. To what extent is transitional criminal justice conceptualized and adjudicated as extraordinary in the relevant societies or guided by the ordinary rule of law of established democra- I 27 28 Transitional Justice cies? This core dilemma implies many others. What is the relevant legal order? Military or civilian? International or national? And, no matter what the relevant legal order, to what extent ought understandings of criminal responsibility be projected backward?

Is the entire justice project hopelessly ex post? Who should be held to account, and, for what offense? These dilemmas of transition organize this chapter. To what extent are broader rule-of-law values jeopardized without punishment? Here is where the particular political circumstances of the transition play a role.

For these are extraordinary circumstances of past injustices, often state sponsored. It is against this backdrop that the argument from impunity takes on new meaning. In this context, the exercise of criminal justice is thought to best undo past state justice and to advance the normative transformation of these times to a rule-of-law system. The foundational argument for successor trials has a rich historical pedigree going back to the Middle Ages, drawing from international legal norms relating justice to unlawful political violence.

Trials have long been used to express international legal norms regarding injustice in war. Historically, successor trials rely on a concept of tyranny grounded in treason; of the unjust war as the lost war. In the contemporary moment, successor criminal justice is generalized beyond its postwar uses to other transitions in which its central normative force appears to be condemnatory of past political violence. Trials of the political leadership are used to construct the very meaning of state injustice.

Criminal justice offers normative legalism that helps to bridge periods of diminished rule of law. Trials offer a way to express both public condemnation of past violence and the legitimation of the rule of law necessary to the consolidation of future democracy. While trials in these political contexts are intended to serve political purposes—relating to the extraordinary message of transitional justice to lay the foundation of the political transition, to disavow predecessor political norms, and to construct a new legal order—these very features are in tension with conventional understandings of the rule of law.

The core dilemma relates to the central feature of transition: the political context of the normative shift. The transitional normative message is most clearly expressed through the international legal order, as its strengths are a normative machinery with the capacity to comprehend extraordinary political violence deployed outside the ordinary legal order. As such, it is well suited to express the transitional message of normative shift. The failure of that earlier postwar national justice is said to explain only the subsequent resurgence of German aggression; the failure of accountability is itself considered to cause the failure of liberalization.

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War-related guilt borne by the country as a whole was deemed to prevent a transition to lasting democracy. The view of national justice as hopelessly political represents prior postwar policy, with apparent repercussions for the century. So it was that at Nuremberg the obverse of the postwar response became the norm. As after World War I, the mechanism for accountability is the trial, and the primary offense continues to be aggression.

Nevertheless, the similarities end there. And, rather than punishing the country, the aim was ascribing individual responsibility. Yet, as we shall see, the reality of the Nuremberg trials diverged from its intended mandate. How justice was done at Nuremberg, including its profound irregularities, has become virtually synonymous with successor justice. A legal anomaly at the time, the Nuremberg trials remain a largely anomalous precedent, given the record of successor practices in this century.

Beginning with the precedential aspect of the convening of these proceedings, it is here that the precedent is on the shakiest ground. In the last half century, Nuremberg has shaped the dominant scholarly understanding of successor justice with the shift in approach, from national to international processes, as well as from the collective to the individual. Review of the bibliographies concerning accountability for grave state crimes reveals that literature about international law responses to atrocities since World War II, particularly in the English language, has grown rapidly, while the comparative study of national experiences is, by contrast, virtually ignored.

The postwar period witnessed an unprecedented successful multilateral cooperation in the International Military Tribunal at Nuremberg, the establishment of the United Nations, as well as the passage of numerous conventions and resolutions regarding international crimes. The depth of the atrocities of the National Socialists and their collaborators spurred a previously unattainable international consensus.

The optimism and momentum of the newfound consensus about international crimes, as well as the international cooperation of the trials, made credible the hope of creating a body of international criminal law regarding state persecution that would be enforced by some manner of international tribunal.

All became major areas of study that continue to the present. International penal law remains in its infancy: There is still no international criminal code. And, despite repeated calls for an international criminal court or even the creation of criminal jurisdiction in the International Court of Justice, the forum has yet to be created. In very recent developments, a consensus has emerged in the international community supportive in principle of a standing international criminal court before the end of the century.

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