Document Type
Working Paper
Publication Date
7-21-2011
SSRN Discipline
PSN Subject Matter eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Public International Law eJournals; Legal Scholarship Network; Criminal Law & Procedure eJournals; Social Insurance Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; International Law & Trade eJournals; Law School Research Papers - Public Law & Legal Theory; Political Institutions eJournals; Political Science Network
Abstract
This essay considers the various ways that law functions to sometimes perpetuate and sometimes prevent genocide and other mass catastrophes in transitional societies In particular the essay examines three conceptually distinct aspects of law within a given society the concept of law the "rule of law" and the role or function of law and posits that only by considering the interplay of these three aspects of law within transitional societies can we fully appreciate the necessity of a robust commitment to the rule of law as a bulwark against mass atrocity within transitional societies The essay offers a response and supplement to the insights contained in David Gray's interesting essay Transitional Disclosures What Transitional Justice Reveals about Law" in which Gray thoughtfully challenges the conventional view that a commitment to the rule of law is the sole and best hope for preventing mass atrocity given the role that "law" and legal officials often play in perpetuating mass violence and contends that dynamic stability among competing and overlapping identities ie religious ethnic class and associations is necessary to stave off abusive regimes While this essay accepts the latter insight I argue that Gray's multidimensional "law as paradigm" understanding of the relationship between legal institutions and abusive norms obscures important distinctions between the concept of law the rule of law and the role of law By retracing these distinctions the essay demonstrates that a robust commitment to the rule of law is indeed a necessary but not sufficient condition for preventing the rise of abusive regimes even within Gray's own prescription
Recommended Citation
Meredith Render,
Power, Paradigms, and Legal Prescriptions: 'The Rule of Law' as a Necessary but Not Sufficient Condition for Transitional Justice,
(2011).
Available at:
https://scholarship.law.ua.edu/fac_working_papers/629