Power, Paradigms, and Legal Prescriptions: 'The Rule of Law' as a Necessary but Not Sufficient Condition for Transitional Justice
TRANSITIONS, Austin Sarat, ed., 2011
32 Pages Posted: 21 Jul 2011
Date Written: July 20, 2011
This essay considers the various ways that law functions to sometimes perpetuate and sometimes prevent genocide and other mass catastrophes in transitional societies. In particular, the essay examines three conceptually distinct aspects of law within a given society - the concept of law, the “rule of law” and the role (or function) of law - and posits that only by considering the interplay of these three aspects of law within transitional societies can we fully appreciate the necessity of a robust commitment to the rule of law as a bulwark against mass atrocity within transitional societies.
The essay offers a response and supplement to the insights contained in David Gray’s interesting essay, "Transitional Disclosures: What Transitional Justice Reveals about Law” in which Gray thoughtfully challenges the conventional view that a commitment to the rule of law is the sole and best hope for preventing mass atrocity given the role that “law” and legal officials often play in perpetuating mass violence, and contends that dynamic stability among competing and overlapping identities (i.e. religious, ethnic, class) and associations is necessary to stave off abusive regimes. While this essay accepts the latter insight, I argue that Gray’s multi-dimensional “law as paradigm” understanding of the relationship between legal institutions and abusive norms obscures important distinctions between the concept of law, the rule of law, and the role of law. By retracing these distinctions, the essay demonstrates that a robust commitment to the rule of law is indeed a necessary (but not sufficient) condition for preventing the rise of abusive regimes, even within Gray’s own prescription.
Keywords: Transitional justice, rule of law, David Gray, genocide, identity
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