Transitional Justice as Ordinary Justice

IF 3.5 2区 社会学 Q1 LAW
Harvard Law Review Pub Date : 2004-01-01 DOI:10.2307/4093461
E. Posner, Adrian Vermeule
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引用次数: 282

Abstract

Theorists of transitional justice study the transition measures used, or eschewed, by new democracies that succeed communist or authoritarian regimes - measures including trials, purges, lustration, reparations, and truth commissions. The theorists tend to oppose transitional measures, portraying them as illiberal and as a distraction from the task of consolidating new democracies. In this Article we argue against that view. The critics of transitional justice have gone wrong by overlooking that transitional measures are common in consolidated legal systems, which themselves constantly undergo political and economic shocks resulting in transitions of greater or lesser degree. Ordinary justice has developed a range of pragmatic tools for managing transitions. Consolidated democracies use trials, purges and reparations to accomplish valuable forward-looking goals without allowing illiberal repression; new democracies can and should use those tools also. Because transitional justice is continuous with ordinary justice, there is no reason to treat transitional-justice measures as presumptively suspect, on either moral or institutional grounds.
过渡司法作为普通司法
过渡司法的理论家研究接替共产主义或专制政权的新民主国家所采用或回避的过渡措施,包括审判、清洗、清算、赔偿和真相委员会。理论家们倾向于反对过渡性措施,认为这些措施不自由,会分散人们对巩固新民主国家任务的注意力。在本文中,我们反对这种观点。过渡时期司法的批评者犯了错误,他们忽视了过渡措施在综合法律制度中很常见,这些制度本身经常遭受政治和经济冲击,导致或多或少程度的过渡。普通司法已经开发了一系列管理过渡的实用工具。巩固的民主国家利用审判、清洗和赔偿来实现有价值的前瞻性目标,而不允许不自由的镇压;新的民主国家也可以而且应该使用这些工具。由于过渡时期司法与普通司法是连续的,因此没有理由将过渡时期司法措施推定为可疑的,无论是在道德上还是在制度上。
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来源期刊
CiteScore
2.90
自引率
11.80%
发文量
1
期刊介绍: The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2,500 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions and, together with a professional business staff of three, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for Review members to develop their own editing and writing skills. Accordingly, each issue contains pieces by student editors as well as outside authors. The Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. All articles — even those by the most respected authorities — are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone.
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