Affirmative Action as Transitional Justice

48 Pages Posted: 22 Oct 2019 Last revised: 16 Jul 2020

See all articles by Yuvraj Joshi

Yuvraj Joshi

Brooklyn Law School; UCLA Promise Institute of Human Rights; UC Berkeley Miller Institute for Global Challenges and the Law; University of British Columbia (UBC), Faculty of Law

Date Written: May 1, 2020

Abstract

What role does affirmative action play in transitioning toward a more just society? The two literatures best equipped to answer this question — transitional justice and affirmative action — have neglected both the question and one another. Transitional justice scholars have focused on a limited set of measures (such as truth commissions and criminal prosecutions) and overlooked the role of affirmative action in facilitating transition. At the same time, affirmative action scholars have neglected the ways in which affirmative action may be part of a larger transitional justice project. Bringing these literatures into conversation for the first time, this Article shows how integrating affirmative action and transitional justice can advance our understanding of both practices. Affirmative action can bring attention to structural inequalities in transitional societies and help delineate the boundaries of transitional justice. In so doing, affirmative action can bridge a divide between the field of transitional justice and the phenomenon of societal transition that it seeks to understand and facilitate. Transitional justice, on the other hand, can elucidate how the period of transition informs affirmative action’s features and functions; it can also illuminate affirmative action’s strengths and shortcomings in bringing about a more just society. Affirmative action should, therefore, be added to the transitional justice “toolkit” and anchored in transitional justice concepts and debates.

Keywords: affirmative action, transitional justice, racial justice, constitutional law, comparative law, human rights, United States, South Africa, Students for Fair Admissions v. Harvard

Suggested Citation

Joshi, Yuvraj, Affirmative Action as Transitional Justice (May 1, 2020). Wisconsin Law Review, Vol. 2020, No. 1, 2020, Available at SSRN: https://ssrn.com/abstract=3465728

Yuvraj Joshi (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

UCLA Promise Institute of Human Rights ( email )

UC Berkeley Miller Institute for Global Challenges and the Law ( email )

215 Law Building
Berkeley, CA 94720-7200
United States

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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