Is Legalism always the Best Approach? Between an Atomistic and Holistic Approach to Post-Conflict Societies

Abstract

This paper is based on the premise that an overreliance on law in transitional justice fails to sufficiently address the long-term aims of healing and reconciliation, particularly in post-conflict societies. As a result of transitional justice’s political, international and institutional character in the form of legalism, other viable mechanisms are restricted. The key issue revolves around the ownership of any process and the failure of transitional justice to sufficiently consider aims outside retributive justice and the legitimacy of the state post-conflict. Focusing on legalism’s above characteristics, this paper considers the practical problems that legal dominance creates and discusses the quasi-judicial alternatives of gacaca and Truth and Reconciliation Commissions, before taking into account the practices in post-Communist Eastern Europe.