1. Transitional constitutionalism?

The strongest chapters in the volume are those that seek to address the true intersection of the three themes of the volume, rather than treating only one. These are largely the chapters dealing with debates about constitutionalism, whether in the context of the European Court of Human Rights, the South African Constitutional Court, the peculiar version of transitional justice promoted for Iraq, and the Good Friday Agreement for Northern Ireland and moves towards devolution in several regions in the United Kingdom.Footnote ¹ The most thought-provoking chapters address, in a variety of ways, what Ruti Teitel has called ‘transitional constitutionalism’, and remind us of the difficulty of unravelling what she calls a distinctive paradox. This is that in transitional periods, when the very foundations of the legal order and the state are in flux, constitutional and judicial decisions are very much under the influence of politics and simultaneously serve to shape future politics post-transition.Footnote ² The distinctive nature of transitional periods poses significant challenges for those seeking to (re)install the rule of law, not least judges, who, whether operating in civil or common law systems, seek a firm foundation for their judgments. However, in transitional times, the old rules and systems may be discredited or completely abandoned, and, particularly in post-conflict situations, may have ceased to operate. Constitutions may be under revision, or may be temporary creations, as with the 1994 South African transitional constitution. In such instances, the political nature of justice is laid bare – as Teitel observes, it is very much a creature of politics and has the power to shape politics. There can be no pretence that it is a completely neutral, technical activity (if it could ever be so viewed). However, much of the legitimacy and, indeed, legality of law is derived, at least on the positivist conception most utilized by judges and policymakers, from its predictability and transparency, and, indeed, something like the primary and secondary rules proposed by H. L. A. Hart.Footnote ³ In times of transition, it is not only the primary rules that may be in flux, whether to do with ordinary tort law or complex human rights violations, but also the secondary rules and institutions that shape this law. In such instances the legitimacy of specific laws may be called into question, but so too may the legitimacy of ‘lawmakers’, whether legislators or, in certain capacities, judges.

2. Judges in transition

The peculiar nature of judicial action in the context of a transforming constitution is the subject of the chapter by Hugh Corder. Corder reads, in the decisions of South Africa's Constitutional Court, not merely an awareness of functioning in the midst of constitutional change but, rather, to quote a judgment, a ‘constitutional commitment to transformation’.Footnote ⁴ Similarly, John Morison and Marie Lynch see the Good Friday Agreement for Northern Ireland less as a constitutional settlement than as a document creating a constitutional space, in which broad political and social issues such as self-determination could be taken up by the people of Northern Ireland.Footnote ⁵ They even go further, suggesting that lessons from this constitutional debate may help provide guidance to a United Kingdom in a form of transition, with devolution processes not only in Northern Ireland but also in Wales and Scotland, and with a new constitutional landscape of sorts developing in the light of the Human Rights Act.

Some chapters do grapple more directly with human rights, rather than constitutionalism or the rule of law, in transition. Tom Hadden seeks to address the apparent tension between the demands of conflict resolution and the protection of human rights. He attempts to resolve this apparent tension through specific timing and sequencing, prioritizing in a utilitarian fashion the resolution of conflict over human rights when the conflict is at its worst, and only moving later to address demands for accountability.Footnote ⁶ While this solution might be criticized for allowing impunity to take root, making the rule of law and accountability more difficult later, if the dynamic account of transitional constitutionalism is correct, then there is more than one opportunity to address human rights demands.

Christine Bell, Colm Campbell, and Fionnaula Ní Aoláin, by contrast, consider what may transpire if, as Teitel has suggested, transitional justice has moved from being an extraordinary process that follows upheavals and conflict to a ‘steady state’, or a normal occurrence.Footnote ⁷ While Teitel's earlier concept of transitional constitutionalism allows for a good deal of flexibility, the normalization of transitional justice can enable its co-optation, they argue. They suggest that the prospect of transition and the protection of human rights were central to the US narrative justifying the invasion of Iraq, fundamentally redefining the concepts in question even as the United States was seeking to redefine torture. The narrative of transformation continued, they argue, in UN Security Council resolutions formally recognizing the end of occupation and the interim Iraqi government, yet effectively vesting in the coalition forces powers similar to those of occupying powers under international humanitarian law.Footnote ⁸ If this is the case, they argue, the United States has effectively used its redefinition of transition to buttress its hegemonic position, effectively reversing the notion of transitional periods as ones in which the fundamental constitutional order is up for grabs, to be debated and changed by politicians, judges, and perhaps ordinary citizens.

A chapter by Gerald Quinn reminds us that, however useful the transitional constitution concept may be, and often it does allow for positive change more amenable to the protection of human rights, it is possible to have ‘dangerous constitutional moments’. In a chapter with that title he returns us to the Hart–Fuller debate in the wake of the Nazi abuses, and the possibility that law can be captured for malign purposes, and that it can happen precisely in moments of transition, because foundations have been rejected or are undergoing change.Footnote ⁹

The primary weakness of the volume is its geographic narrowness, particularly given the historic and geographically diverse range of transitions from authoritarianism and civil war over the past three decades in Latin America, Africa, southern Europe, the Balkans, and Africa. The majority of the chapters focus on the United Kingdom, and many of those on Northern Ireland, although some consider European Court of Human Rights jurisprudence and a few reach further, to South Africa and to Iraq. Reflections on other transitions might have strengthened the volume, and also allowed greater attention to what I read as the most interesting dilemma in the book – the embedding and promotion of rule of law with concomitant protections for human rights by judges in times of profound change – when there is no fixed constitutional grounding, or the constitution itself is transitional or undergoing change. The focus of the majority of the chapters, it should be noted, may be seen as less on human rights than on rule of law, in the context of transition. However, the volume is most interesting when it grapples with a core issue: how do judges mediate change and stability in transition? A few of the chapters also more directly engage with the role of international standards and actors, whether judges or otherwise, beyond the borders of states facing transitions.

3. Transnational judicial dialogue and international and regional human rights standards in times of transition

Naturally, it would be wrong to imply that the challenges of (re)constructing law in transition are faced by judges or legislators in a vacuum.Footnote ¹⁰ Rather, judges in many transitional situations may seek to fill gaps in law, and indeed bolster their own legitimacy (or the legitimacy of their interpretations) with reference to international and regional human rights instruments, and through what is termed by scholars such as Harold Koh and Anne-Marie Slaughter ‘transnational judicial dialogue’, as judges in domestic courts rely on cases in other domestic jurisdictions, regional courts, and the ad hoc and hybrid criminal tribunals.Footnote ¹¹ Decisions of the Inter-American and European Courts of Human Rights are incorporated into domestic law routinely, if more frequently in the case of the latter than the former. In the context of states newly acceding to the European Convention on Human Rights, or the subjects of work by the High Commissioner on National Minorities (HCNM) of the Organization for Security and Co-operation in Europe, decisions by external arbiters can help to shape practice within states, particularly in transitional moments when foundations may otherwise appear lacking. Of course, such international influence in domestic courts and legislative affairs is not without controversy, as is illustrated in particular detail by two chapters in the volume, on the use of international legal instruments and arguments in US federal courts and on the work of the HCNM.Footnote ¹² Further, broad principles for (re)building the rule of law and combating impunity are promoted by a range of international political and development actors, such as the United Nations, the European Union, international financial institutions, and bilateral donors.Footnote ¹³ The international nature of such involvement may well lend it legitimacy, particularly in transitional situations where local political actors have been delegitimized, but of course may also be suspect as an external imposition.Footnote ¹⁴

4. Concluding observations

With the rapid growth in discussions of not only transitional justice but the place of the judiciary and justice in transition more broadly, at a theoretical and policy level, we have perhaps reached a time for reflection. Transitions provide the opportunity for transformative change, but are also quite risky because they operate without a solid foundation. If indeed transition has become normalized, or steady-state, then new problems may be presented. These may arise from the excesses of a hegemon, as Bell et al. suggest, or perhaps from overly formulaic approaches to transition, as it becomes increasingly embedded in policy discourse and practice.Footnote ¹⁵ It is to be hoped that the contributors to the volume under review will help to facilitate further discussion about the rule (and role) of law and justice in transition.