Beyond Legalism: Towards a Thicker Understanding of Transitional Justice

TLDR

Transitional justice is dominated by legalism, harming scholarship and practice, and with law already central to conflict transitions, there is now a need to critically assess legalism’s limits and embrace non‑legal actors and knowledge. The paper aims to analyze legalism’s meaning and consequences in transitional justice and to propose corrective approaches that promote legal humility, a human‑rights‑as‑development perspective, and a criminological framework. It does so through a two‑part structure: first, a thematic analysis of legalism’s seduction, triumph of human rights, and state‑centric view; second, an exploration of corrective strategies such as legal humility, human‑rights‑as‑development, and a criminology of transitional justice. Letting go of legalism will thicken the subject and deliver more effective change on the ground.

Abstract

The field of transitional justice is increasingly characterized by the dominance of legalism to the detriment of both scholarship and practice. The first part of the paper examines what is meant by legalism and its consequences in the field through a number of overlapping themes: ‘legalism as seduction’, the ‘triumph’ of human rights, and the tendency towards ‘seeing like a state’. The second part considers a number of correctives to such leanings which are analysed as encouraging legal humility, exploring the human rights as development axis, and finally developing a criminology of transitional justice. As law's place at the heart of transition from conflict is now secure, the time is right for a more honest appraisal of the limitations of legalism and a correspondingly greater willingness to countenance the role of other [non‐legal] actors and forms of knowledge. ‘Letting go of legalism’ will both thicken the subject and deliver more effective change on the ground.