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16 Harv. Hum. Rts. J. 69 (2003)
Transitional Justice Genealogy

handle is hein.journals/hhrj16 and id is 75 raw text is: Transitional Justice Genealogy Ruti G. Teitel* INTRODUCTION This Article proposes a genealogy of transitional justice.1 Transitional jus- tice can be defined as the conception of justice associated with periods of political change,2 characterized by legal responses to confront the wrongdo- ings of repressive predecessor regimes.3 The genealogy presented in this Ar- ticle traces the historical pursuit of justice in periods of political flux, re- viewing the political developments of the last half-century and analyzing the evolution of the conception of transitional justice.4 This Article contends that a genealogy of transitional justice demonstrates, over time, a close rela- tionship between the type of justice pursued and the relevant limiting po- litical conditions. Currently, the discourse is directed at preserving a mini- malist rule of law identified chiefly with maintaining peace. The proposed genealogy is structured along critical cycles that divide along three phases.5 This Article begins by briefly describing the phases, and then elaborates upon each phase as well as upon the critical dynamic inter- relationships of the three phases within the genealogy.6 The notion of gene- alogy presented in this Article is structured along the lines of and situated within an intellectual history.7 Accordingly, the genealogy is organized * Ernst C. Stiefel Professor of Comparative Law, New York Law School. My gratitude to Camille Broussard and Elisa Gerontianos for their research assistance, and to Carlene Walsh for word processing assistance. My thanks to Danielle Celermajer, Bronwyn Leebow, Markus Mueller, Cliff Simms, and Jona- than Stein for their helpful comments. A much earlier version of this Article was presented at the Euro- pean Law Research Center Spring Conference 2002: The Globalization of Modern Legal Thought, Production and Reception, 1850-2000, Harvard Law School. 1. For a comprehensive analysis of transitional justice, see RUTi G. TEITEL, TRANSITIONAL JUSTICE (2000). 2. See GUILLERMO O'DONNELL & PHILIPPE C. SCHMITYER, TRANSITIONS FROM AUTHORITARIAN RULE: TENTATIVE CONCLUSIONS ABOUT UNCERTAIN DEMOCRACIES 6 (1998) (defining transition as the inter- val between one political regime and another). 3. For a helpful compilation, see TRANSITIONAL JUSTICE: How EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (Neil J. Kritz ed., 1997). 4. See TEITEL, supra note 1; Ruti Teitel, TransitionalJurisprudence: The Role of Law in Political Transfor- matiOn, 106 YALE L.J. 2009 (1997). 5. The use of the term phases here should be considered primarily as a heuristic, to help understand the periodization of the various political and legal periods. This is not to say that there are acoustic sepa- rations dividing these phases. Indeed, there are overlaps among the three phases proposed here. 6. On the critical responses of transitional justice to predecessor political repressions, see TEITEL, supra note 1, at 216, 220-25. 7. Regarding genealogy, see Michel Foucault, Nietzche, Genealogy, History (Donald E Bouchard &

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