Beyond Legalism: Towards a Thicker Understanding of Transitional Justice
| Published date | 01 December 2007 |
| DOI | http://doi.org/10.1111/j.1467-6478.2007.00399.x |
| Date | 01 December 2007 |
| Author | Kieran McEvoy |
JOURNAL OF LAW AND SOCIETY
VOLUME 34, NUMBER 4, DECEMBER 2007
ISSN: 0263-323X, pp. 411±40
Beyond Legalism: Towards a Thicker Understanding of
Transitional Justice
Kieran McEvoy*
The field of transitional justice is increasingly characterized by the
dominance of legalism to the detriment of both scholarship and
practice. The first part of the paper examines what is meant by
legalism and its consequences in the field through a number of over-
lapping themes: `legalism as seduction', the `triumph' of human rights,
and the tendency towards `seeing like a state'. The second part con-
siders a number of correctives to such leanings which are analysed as
encouraging legal humility, exploring the human rights as development
axis, and finally developing a criminology of transitional justice. As
law's place at the heart of transition from conflict is now secure, the
time is right for a more honest appraisal of the limitations of legalism
and a correspondingly greater willingness to countenance the role of
other [non-legal] actors and forms of knowledge. `Letting go of legal-
ism' will both thicken the subject and deliver more effective change on
the ground.
411
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Institute of Criminology and Criminal Justice, School of Law, Queen's
University Belfast, Belfast BT7 1NN, Northern Ireland
k.mcevoy@qub.ac.uk
This paper has been in gestation for some time. Different versions were presented at a
plenary address to the British Criminology Conference in 2004, a seminar at the
University of Sterling, an inaugural professorial lecture in Belfast in 2005, and at the
Socio-Legal Studies Association Conference in Kent in 2007. In addition to those who
offered comments at these events, I would like to thank in particular Lorna McGregor,
Kirsten McConnachie, Lesley McEvoy, Ron Dudai, and Cath Collins for detailed
comments, as well as the anonymous referees of this journal. Finally I would like to
acknowledge Frank Zimring and Harry Schreiber for their encouragement and hospitality
at Berkeley Law School University of California in 2006 where much of the writing was
completed and the Leverhulme Trust which funded that sabbatical through their Study
Abroad Fellowship Programme. Remaining errors are of course my own.
INTRODUCTION
Transitional justice is a field on an upward trajectory. In a relatively short
period, it has come to dominate debates on the intersection between
democratization, human rights protections, and state-reconstruction after
conflict. As well as its historical associations with the post-war tribunals in
Nuremberg and Tokyo, and the democratization of previously authoritarian
regimes in Latin America and the former Soviet Union, the term is now
regularly deployed with regard to the Balkans, Rwanda, Sierra Leone, East
Timor, and elsewhere.
1
A flurry of scholarly activity in recent years suggest
its growing political and scholarly importance.
2
A distinguishable transi-
tional justice template has emerged involving possible prosecutorial styles of
justice (sometimes with bespoke international, hybrid or local institutions),
local mechanisms for truth recovery, and a programme for criminal justice
reform in previously conflicted societies. Transitional justice has emerged
from its historically exceptionalist origins to become something which is
normal, institutionalized and mainstreamed.
3
This paper will argue that a key trend is already apparent in this relatively
new field ± the dominance of legalism.
4
This scholarly emphasis is also
prevalent in the policy and practice of transitional justice. For example,
international donors are funding what Brooks has described as an `explosion
in promotion of the rule of law' in local criminal justice systems in
transition.
5
International criminal justice appears increasingly to have been
412
1 The rising profile and broadening gaze of transitional justice was confirmed by the
publication of a report by the UN Secretary General in 2004, in which transitional
justice is defined as:
compris[ing] the full range of processes and mechanisms associated with a
society's attempts to come to terms with a legacy of large-scale past abuses, in
order to ensure accountability, serve justice and achieve reconciliation. These may
include both judicial and non-judicial mechanisms, with differing levels of
international involvement (or none at all) and individual prosecutions, reparations,
truth-seeking, institutional reform, vetting and dismissals, or a combination
thereof.
See United Nations, The Rule of Law and Transitional Justice in Conflict and Post
Conflict Societies (2004) Available at
N04/395/29/PDF/N0439529.pdf>.
2 The scholarly literature on the topic is discussed throughout the paper.
3R.Teitel, `Transitional Justice Genealogy' (2003) 16 Harvard Human Rights J. 69±
94.
4Ofcourse, sociologists, psychologists, anthropologists, criminologists, political
scientists and others are producing thoughtful and insightful scholarship about
transitional justice (see, for example, the work of Claire Moon, Brandon Hamber,
Richard Wilson, Laura Piacentini, Tim Kelman) as well as others cited below in this
article. However, one suspects that few of these scholars would dispute that law is
the dominant discourse.
5R.Brooks, `The New Imperialism: Violence, Norms, and the ``Rule Of Law'''
(2003) 101 Michigan Law Rev. 2275±340.
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
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