Judicial Independence, Transitional Justice and the Rule of Law

Abstract

In this article, I will try to sketch an account of what is achieved when the rule of law is established, though I am of course aware that any such account is controversial. I hope to go some way to showing that the issues raised in transitions might shed a light that helps in taking that controversy forward. But, in my view, the light which transitions shed is probably much the same as that shed by confronting our intuitions about the ordinary legal situation from the perspective of any extraordinary one. For instance, we learn something about legality when we confront the situation of the proper rule of law response to a declaration of emergency, to a coup d'état, or to aterrorism statute. And if that is right, we can conclude that in all such confrontations we will find that our understanding of what is ordinary changes, just as the extraordinary seems less unfamiliar.