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Alternative Law Journal |
Francois DuBois and Adam Czarnota
Francois DuBois teaches law at
the University of Cape Town, South Africa.
Adam Czarnota teaches law
at Macquarie University.
One of the remarkable — perhaps defining — features of the transitions from authoritarian and totalitarian rule that have taken place in different parts of the world over the past ten years, has been the role assigned to law. In contrast with previous transitional periods, in which law was given an all-or-nothing role to play, transitions from the late 1980s to the late 1990s have been characterised by attempts to carve out a different, more complex role for law. Whereas earlier transitions had either proceeded purely politically — witness England’s Glorious Revolution, the French and Russian Revolution, as well as the demise of European colonies in Africa and Asia — or had, as in the case of the post-WWII war crimes trials and denazification processes in Western Europe, at least nominally placed great store on allowing law to take its course, insulated from political processes, law’s assigned role in these recent transitions in East and Central Europe, Latin America and Southern Africa has been to complement politics.
This peculiar role given to law finds its concrete expression in the prominence of quasi-legal institutions in these transitional processes. Examples are constitutional tribunals and courts in post-communist Europe and the famous Truth and Reconciliation Commission in South Africa. These institutions are undoubtedly legal, in as much as they operate within a framework of authoritative rules and are given jurisdiction over fields that are normally the preserve of courts; yet they are also political in a way that courts are not: often staffed by people appointed for their political significance and with considerable latitude in the procedures and outcomes they adopt, these bodies are meant to straddle the divide between the legal and political spheres by being comparatively open to the latter. The quasi legal institutions take the political into consideration in an overt way that ordinary legal proceedings do not – allowing amnesty, for example, rather than criminal prosecution, due to the fragility of the situation.
The transformation in the rule of law evidenced by these developments is the topic of our article. In such periods, as Ruti Teitel has observed, ‘the rule of law constitutes as well as is constituted ...’[1] But how does it constitute and how is it constituted? What is the relationship between the active and passive aspects of the rule of law during such periods? Answering these questions requires an exploration of transitional politics, for it is this that potentially renders the ever-present interface between law and politics special during such periods. How, if at all, does transitional politics differ from ‘ordinary’ politics? In this regard, there is in our view a great temptation locked into the terms ‘transition’, ‘transitional justice’, ‘transitional jurisprudence’, ‘transitional politics’. This is the danger of teleology, of assuming a particular end-point to the transition, as can be witnessed in the interchangeability of the terms ‘transition’ and ‘democratisation’ in various writings about the processes with which we are concerned. Whilst understandable, and perhaps commendable, in the aspirational language of political discourse and manifestos, succumbing to this temptation is fatal to an attempt to analyse and understand the processes in which this teleological slippage occurs. For if the transition were treated as ‘always-already’ ‘democratisation’, then the very feature that makes such periods ‘transitional’ rather than ordinary — the fact that these are periods during which the most basic aspects of a society’s political patterns are up for grabs, would disappear from the analyst’s radar screen. In other words, a teleological understanding and treatment of transitions would render such periods ‘ordinary’, in as much as it would treat them as periods during which means rather than ends form the primary subject of political contestation. Legal scholarship has indeed in the recent past made just that mistake, when it embarked on the fatally flawed ‘law and development’ studies; this article is partly inspired by a desire to rescue the burgeoning field of ‘transitology’ from the same fate.
We therefore begin this article with an analysis of transitions that is designed to explain the nature of transitional politics. This is followed by a discussion of the rule of law, and finally by a fusion of the analysis presented in the first two parts, in the form of a discussion of the role of law in transitions.
Politics is always about change: promoting change, resisting it, or debating the degrees of change needed. In that sense, all politics is ‘transitional’. Yet this adjective has in recent literature come to be used more sparingly, so as to denote what is perceived as ruptures in hitherto-established political systems in Eastern and Central Europe, Latin America and parts of Africa. How, then, does transitional politics differ from ‘ordinary’ politics?
The answer lies in noting the phenomenon referred to earlier: the all-too-common association of ‘transition’ with ‘democratisation’. Although this association is in our view a mistake, noting its existence highlights the distinctive character of ‘transitional politics’: its subject matter is the very terms on which politics are to be conducted, in circumstances in which at least some political actors perceive a realistic opportunity for changing those terms. It is a common feature of all these societies that politics had been institutionalised on avowedly undemocratic lines, and that the established institutions broke down under pressure from those seeking to replace them. Thus Solidarity versus communist government in Poland, ANC versus National Party government in South Africa are examples of such a situation. In all these societies, politics came to be focused on politics itself, and the changes that came to be contested in political debates were changes about the framework of politics.
Political debates about the framework of politics are, of course, not confined to these societies. They also occur in what are usually described as ‘stable democracies’, and even in stable repressive regimes. What distinguishes ‘transitional politics’ from these processes, are two factors in particular, at least one of which is always present in such ‘non-transitional’ situations, although both might be present simultaneously in different degrees. The first is the comprehensive nature of the debate: in transitional politics everything is up for grabs all at once. This distinguishes transitional politics from, for example, debates in Britain about Northern Ireland, Scottish and Welsh Assemblies, reform of the House of Lords or the Human Rights Act. However important these are, they do not, either separately or in combination, add up to a total overhaul of the British Constitution. Contrast with this example, the movement from a military dictatorship to elective politics in Latin America, or the abolition of communist rule in Eastern Europe and of apartheid in South Africa, the re-drawing of boundaries in former Yugoslavia and Czechoslovakia. The second factor is that ‘transitional politics’ is realistic in the sense that there is a real engagement between political foes, a true politics in the sense of a real contestation between opponents: it is not the politics of Britain’s Socialist Workers’ Party or of the Burmese opposition, neither of which has been able to force its foes to engage with it on the political plane. It is instead the politics of Solidarity v the Polish Communist Party, the ANC v South Africa’s National Party, velvet revolution in Czechoslovakia, marching in Belgrade against the Milosevic regime. It is not difficult to give plenty more examples.
Transitional politics, then, is politics about comprehensive simultaneous changes to the political fabric of society, conducted in circumstances where, for whatever underlying reason, politics about politics has become possible after long being foreclosed by the very system that is now subject to pressures for change. The outcome of this process may well be ‘democratisation’, but it need not be. Although the breakdown of undemocratic regimes is a constituent feature of transitional politics, it is by no means inevitable that it will result in democracy. For that, the transitional process is too complex.
Transitional politics is therefore open-ended in a way that ordinary politics is not. Whereas ordinary politics, even ordinary politics about politics, takes place in accordance with ‘the rules of the game’ which inevitably foreclose certain outcomes, transitional politics, in seeking to fundamentally change the rules of the game, is subject to no such limitations. It is the closest we come to what one author has recently called ‘reflexive politics’.[2]
What role does law play in such a context? This question has received surprisingly little attention in the literature. Analyses typically disregard either law, focusing instead entirely on the political process, or politics, treating the law as autonomous. In view of the nature of transitional politics, this is not surprising. On the one hand, its ‘reflexive’ nature can easily be taken as introducing an element so different from the relationship between ordinary politics and law, that it ruptures this relationship. On the other hand, the relentless focus on change in ordinary politics may lead to the conclusion that the role of law is essentially similar in ‘transitional’ and ‘ordinary contexts. Yet these alternatives do not exhaust the possibilities for analysis, and should be resisted, for both rest on the same mistake: a too simplistic picture of law. In this picture law is static, always capable of playing one role only, namely that which it plays in the context of ordinary politics. That is why, for these analyses, the ‘transitional’ role of law is an all or nothing affair: it either plays its normal role, or it plays none. But this vision of law is mistaken. Law plays different roles at different times. Once this temporal dimension of law is introduced, it becomes possible to understand the rule of law in transitions.
For political scientists and sociologists but not so much for lawyers it is obvious that law plays different roles in repressive regimes and in stable liberal democracies. In the notion of repressive regimes we include former communist regimes and also apartheid South Africa and other authoritarian regimes such as authoritarian regimes in South America. There are many differences between them which we do not deny but nevertheless the function of law from the point of view of the relation between politics and law has something in common. This is the domination of politics over law.
In stable liberal democracies law is to a considerable degree autonomous from politics, or at least ‘semi-autonomous’. Certainly there is overlap between politics and law, and input from one domain to the other, but in considerable measure it makes sense to speak of an autonomous logic of interpretation and application of law. In legal thought this is manifested mainly by the principle of the independence of the judiciary, and the distinctive sources and character of legal reasoning. Politicians create law in legislatures but law is interpreted and applied according to canons of interpretation and proper application operative in legal interpretive communities, according to principles of legal reasoning which such communities share.
In oppressive regimes, by contrast, law is subordinated to politics. The function of law is implementation of political aims. It is possible to build a typology of oppressive regimes using the level of autonomy of law in particular social spheres. In communist regimes there was no autonomy at all. There was no distinction between public and private law and both areas of law were subordinated to political aims. In other oppressive regimes there were areas of law under political control, usually those dealing with matters in the public sphere, but at the same time what is called private law was relatively independent from implementation of political aims.
In transitions, ‘things fall apart, the centre cannot hold’. This has important consequences for the possibility of transitional politics, and it is these consequences that point towards the role of law in transitions.
Politics may only be war by other means, but it is this difference in means that defines politics: unlike war, politics does not involve the annihilation of one’s enemy (broadly conceived); future battles are expected, not prevented. What makes this possible, if both war and politics may pursue the same goals? The answer to this question can be expressed in many different ways, but one way of doing so is to use the term ‘community.’ Politics is possible when adversaries meet each other not only as enemies, but also as people sharing something of value — that is, if they meet as members of a community. Now ‘community’ is a loaded concept, and a vague one at that, but this is precisely what makes it useful to understanding the role of law in transitional politics.
Let us, for simplicity’s sake, postulate just two types of community: a ‘thin’ community is one with minimal shared values among its members, while a ‘thick’ community is one in which a great deal is shared. Transitional politics requires only a ‘thin community’ among the significant adversaries, only just enough to ensure that the society in question is not SLORC’s Myanmar, Bosnia, Chile after Allende or apartheid South Africa. It requires no more than that the parties recognise sufficient commonality to allow politics to take place. It does not require a ‘thick community’, although of course the ‘thin community’ might be constituted by various ‘thick communities.’ In fact it requires the absence of an all-encompassing ‘thick community’, for in that case the contestation typical of transitions would not get off the ground.
The rule of law can constitute such a ‘thin community’, for by providing exclusionary reasons, law closes off certain issues from conflict. In other words it provides the centre that prevents things from falling apart, thereby enabling transitional politics. Because transitional periods are periods during which even fundamental questions are being contested, during which the terms of a possible ‘community’ are being debated and fought over, transitional politics requires that law goes no further than this. And the way in which this is ensured, is through the creation of quasi-legal institutions which are open to politics to an extent unmatched by normal legal institutions. This openness allows transitional politics to take place within the framework of law without being colonised by the legal system and thus to hang flesh on the bare skeleton of the rule of law, thereby also constituting the law.
In transitional politics there is a need for restrictions imposed on politically opposed parties. Law provides them. An example of that is the procedure adopted in transitions of so-called ‘round table talks’, which usually are composed of talks about talks, which establish procedure, and then substantial political talks about substantial political issues.
What is more important is that in the process of transition such a ‘thin community’ is very fragile and could be very easily destroyed by normal political processes. Because of that there is growth in the role of law and legal institutions which we call quasi-legal. These are institutions which will preserve the fragile base for a ‘thin community’ but at the same time will not close the political process, in other words, when law does not colonise politics but only blocks some destructive possibilities. Discussion about most sensitive issues is transferred from open political process to quasi-legal institutions.
In the case of South Africa such an institution is the Truth and Reconciliation Commission (TRC) which was concerned with the huge and potentially dangerous problem of dealing with the past. The aim of the TRC is to reconcile the nation and give recommendations to the President of the Republic about creation of proper legal infrastructure for human rights observance and democracy, in other words, creation of proper infrastructure for a ‘thick community’. TRC is a legal institution with rather untraditional legal procedure and also an institution which expresses the most important political issues facing post-apartheid South Africa.
In post-communist countries an example of such quasi- legal institutions are constitutional tribunals or courts. They legally channel political discussion which is potentially distracting. Their function is different from normal traditional judicial review process. The role of the Hungarian Constitutional Court, especially, is pro-active not only reactive.
That ‘law constitutes as well as is constituted during periods of transition’ is true, but it is the starting point, rather than the end of analysis. In this article we have shown how this process takes place, by analysing both the nature of transitional politics and of the rule of law. As we showed, our analysis makes it possible to answer an intriguing question raised by Ruti Teitel: does the rule of law itself undergo change during transitional periods? Our answer to this is affirmative. The rule of law during transitions differs from the rule of law during periods of repression and democratic governance just as its role in each of these periods is distinct from the other.
References
[1] Teitel, Ruti, Transitional
Jurisprudence. The Role of Law in Political Transformation, (1997) 106 The
Yale Law Journal 2009-80.
[2]
Christodoulidis, Emilious, Law and Reflexive Politics, Kluver Academic
Publisher, 1998.