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Transitional Justice and Rule of Law Reconstruction A Contentious Relationship 1st Edition by Padraig Mcauliffe ISBN 041566814X 9780415668149

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Transitional Justice and Rule of Law Reconstruction A Contentious Relationship 1st Edition Padraig Mcauliffe Digital Instant Download

Author(s): Padraig McAuliffe
ISBN(s): 9780415668149, 041566814X
Edition: 1
File Details: PDF, 1.31 MB
Year: 2013
Language: english
SKU: EB-5420994 Categories: , Tag:

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ISBN 10: 041566814X
ISBN 13: 9780415668149
Author: Padraig Mcauliffe

This short and accessible book is the first to focus exclusively on the inter-relation between transitional justice and rule of law reconstruction in post-conflict and post-authoritarian states. In so doing it provides a provocative reassessment of the various tangled relationships between the two fields, exploring the blind-spots, contradictions and opportunities for mutually-beneficial synergies in practice and scholarship between them. Though it is commonly assumed that transitional justice for past human rights abuses is inherently conducive to restoring the rule of law, differences in how both fields conceptualise the rule of law, the scope of transition and obligations to citizens have resulted in divergent approaches to transitional criminal trial, international criminal law, restorative justice and traditional justice mechanisms. Adopting a critical comparative approach that assesses the experiences of post-authoritarian and post-conflict polities in Latin America, Asia, Europe and Africa undergoing transitional justice and justice sector reform simultaneously, it argues that the potential benefits of transitional justice are exaggerated and urges policy-makers to rebalance the compromises inherent in transitional justice mechanisms against the foundational demands of rule of law reconstruction. This book will be of interest to scholars in the fields of transitional justice, rule of law, legal pluralism and peace-building concerned by the failure of transitional justice to leave a positive legacy to the justice system of the states where it operates. ‘This is a bold and nuanced scrutiny of the international system’s approach to transitional justice and the much vaunted rule of law project. Dr McAulifee should be congratulated for this well-researched book which should be a must read for not only scholars and researchers in transitional justice and peace and conflict studies, but also policy-makers in the international system.’ Dr. Hakeem O. Yusuf, Senior Lecturer, University of Strathclyde and author of Transitional Justice, Judicial Accountability and the Rule of Law.

Transitional Justice and Rule of Law Reconstruction A Contentious Relationship 1st Table of contents:

1 Transitional Justice and Rule of Law Reconstruction: Between Ambition and Modesty
1.1 The Role of Ideas in Transitional Justice
1.2 The Failure to Integrate Transitional Justice with Rule of Law Reconstruction
1.3 Reasons for Modesty: The Transitional Context
1.4 Reasons for Optimism: The Transitional Opportunity
1.5 Organization of the Book
Notes

2 Institutions, Culture and Norms: The Elements of Rule of Law Reconstruction
2.1 Introduction: A Contested Concept
2.2 The Rule of Law in Peace-Building
2.3 Transitional Justice, the Rule of Law and the Risk of Conflation
2.4 Institutions and the Benefit of a ‘Thin’ Rule of Law
2.5 A Culture of the Rule of Law: Binding Citizens to the Courts
2.6 A Culture of the Rule of Law: Restraining Rulers
2.7 The Diffusion of Fair Trial Norms
Notes

3 The Rule of Law in Transitional Justice Discourse: A Narrative, Not a Programme
3.1 Introduction: Does Judicialization of Politics Equal Rule of Law?
3.2 The ‘Transition’ Paradigm
3.3 Justice or the Rule of Law?
3.4 Deeper Examinations of the Rule of Law in Transitional Justice Discourse
 3.4.1 The Nuremberg Debate
 3.4.2 The Post-Communist Transitions
 3.4.3 The First Major Truth Commissions
 3.4.4 Irrelevant Precedents?
3.5 Does Transitional Justice Imply a ‘Transitional Rule of Law’?
3.6 Getting Realistic About the Rule of Law in Transition
3.7 Transitional Justice: Claiming Too Much?
3.8 Conclusion: Pragmatism and Paradox
Notes

4 Process over Product: Towards a Revised Retributivism and Utilitarianism in Transitional Trial
4.1 Introduction
4.2 The Rise of Utilitarianism
4.3 Reconceiving Retributivism
 4.3.1 Restoring the Authority of the Law
 4.3.2 Reviving Public Confidence in the Law
 4.3.3 Establishing Equality Before the Law
4.4 Transitional Trial: The Defendant as a Means to an End?
 4.4.1 Transitional Justice: Setting the Standard of Fairness Low
 4.4.2 The Difficulty of Securing Convictions
 4.4.3 Presumptions of Guilt?
 4.4.4 Tilting the Balance Against the Defendant: A Historical Perspective
4.5 A Revised Utilitarianism
 4.5.1 Social Pedagogy/Expressivism
 4.5.2 Reconciliation
 4.5.3 Deterrence and Prevention
4.6 A Mutually Acceptable Standard of Trial
Notes

5 Never the Twain Shall Meet? The Challenge of International Criminal Jurisdiction to Justice System Reconstruction
5.1 Introduction: International Rule of Law versus Domestic Rule of Law?
5.2 The Ad Hoc Tribunals: Internationalization Unlimited
5.3 Hybrid Courts: A Promise Unfulfilled
5.4 The Rome Statute System of Justice: Help or Hegemon?
5.5 The ICC and Domestic Institution-Building
5.6 The ICC and Domestic Rule of Law Culture
5.7 Positive for Whom? Interrogating ‘Positive’ Complementarity
5.8 Conclusion
Notes

6 Restorative Justice, Traditional Law, and Justice Sector Reform
6.1 Introduction: Pluralism and Restoration
6.2 Parallel Conversations: Why Customary Mechanisms Are Viewed Differently in Rule of Law Reconstruction and Transitional Justice
6.3 From Ignored to Indispensable — Traditional Justice in Rule of Law Reconstruction
 6.3.1 Jurisdiction
 6.3.2 Human Rights
 6.3.3 Mutually Beneficial Integration?
6.4 Restoration and Idealization: The Transitional Justice View
6.5 Conclusion: Opportunities Lost? The Value of Integration

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Tags: Padraig Mcauliffe, Transitional Justice, Law Reconstruction