Transitional Jurisprudence: The Role of Law in Political Transformation
Ruti Teitel

Revolutionary political change challenges the paradigms used to understand and legitimate law in ordinary times. Professor Teitel argues that conventional political theory has not adequately analyzed the distinctive nature of justice during periods of political transformation. Drawing on recent transitions around the globe, she argues that law and justice in such periods take on a simultaneously backward- and forward-looking character; extraordinary legal responses operate to mediate such periods. In ordinary times, adherence to the rule of law limits the law's reach; however, in periods of transition, successor regimes often struggle with the question of whether to honor immoral commitments of their predecessors, and at the same time seek to construct a societal willingness to honor law under the new regime. Adherence or nonadherence to prior law expresses the relationship of present to past regime and a normative shift. The criminal law in such periods offers an especially important venue for transitional decisionmaking. Its normative work is complicated where repression has been carried out by entire regimes, because criminal justice generally ascribes individual responsibility. In recent years, a distinctively transitional criminal sanction that combines partial punishment with investigation of past wrongdoing for public dissemination and education has developed. Constitutionalism also takes on unique dimensions in the context of political flux. Because successor constitutions often broker transitions, they must be understood in terms of the political expedients they have navigated, as well as the lasting principles they seek to enshrine. Professor Teitel argues that the transitional lens may profitably inform the interpretation not only of constitutions in today's emerging democracies, but also of the American Constitution. Analysis of the role of law in transition points to a distinctive new paradigm of jurisprudence constituted by and constitutive of liberalizing political change.