Teitel, Ruti --- "Transitional Justice and the Transformation of Constitutionalism" [2011] ELECD 364; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 4

Section Title: Transitional Justice and the Transformation of Constitutionalism

Author(s): Teitel, Ruti

Number of pages: 20

Extract:

4. Transitional justice and the transformation of
constitutionalism
Ruti Teitel*



This chapter aims at exploring the mutual influence of transitional justice and constitutional-
ism. Constitutionalism herein is understood broadly, not just as the positive law of written
constitutions but as the set of fundamental legal and political norms and practices that are
constitutive of the polity, identified by Aristotle as the politeia. The chapter proceeds by trac-
ing landmark political and legal developments in various regions in relation to constitutional
change, and by looking to relevant transitional justice developments, conceived in terms of
the legal responses to the past regime on the road to liberalization (Teitel 2000).
The predominant strands of constitutional theory in the twentieth century, particularly in
the Anglo-American world, modeled constitutionalism as a form of pre-commitment and
constraint on governmental or state action, usually in the name of individual rights. This form
of constitutionalism is also reflected in a vision of separation of powers within the state and
sometimes a federal division of powers, checks and balances (Dorsen et al. 2010). Here we
can see the significant influence of the US experience, given its contribution of a constitu-
tional structure with restraints internal to the constitution and institutionalized in governmen-
tal structure, including judicial review, separation of powers, checks and balances. This
model was widely exported often notwithstanding context ­ political realities on the ground
(Tushnet 1999).
The content of contemporary constitutionalism is also being shaped through developments
in transitional justice, that is, systematic responses to ...