Transitional justice discourse is generally accepted as having its foundations located in the theoretical, policy and practical implications of dealing with past human rights violations in societies that have experienced either repressive politics or violent conflict. Many theorists and policy-makers resolutely assume or defend the notion that ‘dealing with the past’ is where the debates about, and contribution of, the transitional justice paradigm uniquely lie.2 Understood in this way, transitional justice as a field of study has grown exponentially, comprising theoretical debates, the comparative assessment of domestic accountability schemes, international criminal justice, the study of truth commissions, and ethical-legal debate concerning the morality of compromise on accountability for gross and systematic violations of human rights.

This foreword, building on the previous work of its authors,3 extends and expands our contention that transitional justice in this narrow sense must be located in a broader and more problematised understanding of justice in contemporary transitions. We also use the opportunity provided by this symposium to highlight an expansion of conceptual horizons being carried out at the Transitional Justice Institute (University of Ulster), and the innovative approach to the transitional justice field being advanced by a group of diverse inter-disciplinary scholars. The approach advocates both drawing on other disciplines, and firmly supporting parallel disciplinary fields to work alongside a legal research agenda; affirming the importance of rigorous cross-jurisdictional comparisons; and utilising empirical and socio-legal methodology to advance legal inquiry.

This paper uses Teubner’s reinterpretation of Ehrlich’s idea of ‘living law’ in his paper on ‘Global Bukowina’ as a test case of what is involved in making a classical author speak to current issues. It argues that interpretation is a form of appropriation and that the process of re-contextualising ideas involves an unstable compromise between establishing what an author meant and what an author means.

Constitutional democracies control the exercise of emergency powers through law and through politics. Although many believe that legal controls on the exercise of such powers are essential, examining the structure and history of political controls on emergency powers demonstrates that there are conditions under which such controls can be more effective than legal controls, even in systems committed to parliamentary supremacy. Political controls can sometimes be deployed effectively more quickly than legal ones can. Even in settings seemingly quite unfavourable to the development of constraints on the flow of power to executive government during emergencies, political controls can work, and sometimes might work in real time more effectively than judicial controls do in real time.

In this paper we explore one type of commons – town and village greens – which are an important feature of the rural and, increasingly, the urban, English landscape. Greens are an ancient form of commons, but they are increasingly recognised as having contemporary significance, particularly because of their potential to act as a reservoir for natural resources and their enjoyment. They are, in other words, emerging out of a ‘feudal box’. We focus on the fact that town and village greens are recognised in law by their association with a group of people defined by their physical proximity to the land which is to be registered. Although this does not in itself constitute a community, the law requires for the registration of land as a town or village green a certain degree of organisation and self-selection and this has in the past fostered both a sense of subjective belief in ‘belonging’, as well as exclusion (the rights of local people being potentially ‘diluted’ by the use of the land by those from outside the locality). As well as helping to produce and recognise community and community identity, then, commons may simultaneously produce the conditions for disassociation and exclusion. In this context, we consider how law defines and upholds notions of locality, and also the ways in which an increasingly powerful environmental discourse might be seen to challenge the primacy given to locality as a way of defining and creating greens and, more generally, the practical effects of this on how decisions are made about preserving these spaces as ‘common’. We consider the scope of the public trust doctrine as providing an example of how law is capable of accommodating ideas of shared nature and natural resources, in this case providing a form of public ownership over natural resources. Whilst our analysis is rooted firmly in the law relating to town and village greens in England and Wales, this body of law displays certain important features more broadly applicable to a range of other types of common land, and raises more general issues about how law supports certain interests in land, often to the exclusion of others.

Mark Tushnet’s paper is an interesting extension of his recent work on how constitutional democracies can control the use of emergency powers. His analysis is useful in drawing attention to the often-overlooked impact of political dynamics in times of emergency. However, Tushnet is too ready to accept that political processes will be able to control the grant and use of emergency powers. He also is too quick to draw a sharp dichotomy between effective political and ineffective legal processes. Political processes can be active and useful in reining in the excesses of emergency powers, but usually only if they play out against the backdrop of a vibrant constitutional culture where the potential for abuse of emergency powers is recognised. The impact of legal and supranational controls plays an important role in shaping this constitutional culture, in particular by ‘dampening’ down the abuse of emergency powers and limiting the scope of action available to the executive. Focusing upon the potential of political means alone to control the application of state power in emergency states of exception is to underestimate the capacity of wider constitutional dynamics to play a key role, even if the political arena may be where the ultimate battles are fought out.

Chinese courts’ recent refusal to take on some disputes raises questions on the extent to which they are controlled by superior political powers in their region. Through a close examination of the handling process of ‘Married Out Women’ disputes, this article shows that lower courts in Guangdong Province, China, have effectively resisted pressure to solve the disputes. Arguing legal barriers and enforcement difficulties, the courts ultimately referred the disputes to the governments but agreed to review the governments’ decisions in administrative litigation. In so doing, the courts retain an advantageous position in the power relationship with the governments. The article argues that Chinese courts are capable of deliberating about and transforming their situation by strategically interpreting the law and negotiating with superior powers. It suggests that judicial independence in China is far more complicated than is often recognised, and that judicial behaviour cannot be adequately explained without thick descriptions and understanding of the legal arguments, resource constraints and strategic interpretations open to the courts, in context.

In 2007 the UK established a new single equalities body, to bring together the existing equality Commissions dealing with gender, disability, and race and ethnicity into a Commission for Equality and Human Rights. The promotion and enforcement of ‘equality and diversity’ is one of the three duties of the new body. This paper briefly explores diversity in relation to the theory of gender equality and also examines developments in policy at the EU level, which has provided much of the impetus for change. Our focus is on the policy approach and the tensions that the policy documents reveal about the emphasis on equality and diversity approach, in particular the extent to which attention to gender issues may get lost in the diversity bundle, and the extent to which a focus on the individual may be strengthened over the group.

In this article, I argue that the reclamation of language and the rediscovery of victims’ voices in post-conflict contexts are vital to the realisation of full human rights for all citizens, and necessary preludes to processes of truth recovery. Allowing and encouraging victims to engage in dialogue and public storytelling constitutes a crucial part of the transitional legal and political process. However, as a consequence of campaigns of political murder, torture and detention by oppressive regimes many victims of violence have been returned to a ‘pre-language’ state, in which the articulation of coherent individual and group histories has become increasingly difficult. I contend that enabling victims to reclaim language and narrate their stories is a crucial aspect of the legal, social and political ‘rebalancing project’ necessary in transitional societies to right the wrongs of the past.

Since the mid-1990s there has been intense activity in terms of anti-corruption initiatives. Section 1 of this paper (Regulatory measures: the conventions) focuses on the frameworks of these conventions and in the course of their assessment argues (a) that the lack of a unified approach is unlikely to further the fight against corruption in any meaningful way, (b) that regulation is unlikely to be effective in terms of results unless there are robust enforcement mechanisms in place, and (c) that anti-corruption legislation provides only a partial answer and that we need to engage in what I call a process of re-socialisation. Section 2 (Enforcement and informers) highlights the difficulties associated with enforcing the conventions and explores whether the antiquated qui tam action might serve a useful purpose in addressing the problem of enforcement deficit. Section 3 (Fighting corruption through re-socialisation) asks whether greater social awareness through education provides a possible solution. Guided by a humanistic philosophy of society the view is put forward that part of the answer for effectively tackling corruption lies in making people aware of its long-term effects.

The article aims to test the boundaries of traditional notions and understandings of citizenship and security in transitional societies through the framing of a given question – should paramilitary ex-prisoners be allowed to join the police? The question, considered through an examination of the particular experience of Northern Ireland, acts as a springboard to the deconstruction of broader traditional and transitional assumptions around citizenship and the delivery of security in societies seeking ways out of violent conflict. The article is ultimately concerned, not so much to deliver a final answer to the specifics of the question posed in all contexts, but to problematise notions of citizenship and State to the point where broader questions need to be asked around accepted and preconceived notions of inclusivity, citizenship and security.

In this comment, the author takes issue with Professor Tushnet’s favourable stance on the protection which political controls can afford human rights relative to legal ones. Writing in a jurisdiction with no formal legal instrument of human rights enables the author to speak with experience of the operation of political controls in a ‘pristine parliamentary environment’. The author outlines the ineffectiveness in the Australian experience of counter-terrorism since September 11 of many of the mechanisms which Tushnet has suggested impose constraints upon the diminishment of liberties. The comment concludes that the essential condition for the enhancement of political controls is the presence of legal ones.

In contemporary law, genetic technologies of the body have provided a new layer of complexity to legal determinations of racial identity. Indigenous peoples in particular are often forced to present themselves before law as invisible peoples requesting embodiment, possessing no set identity and requiring a legal determination of their status. In return for their participation in genetic research indigenous peoples have been promised, amongst other things, a reliable identification that would make them visible as indigenous before the law. This article examines genetic and non-genetic approaches to identifying indigenous peoples through a case study of Australian law and argues that while genetic technologies may have little to offer indigenous populations they do hold out the possibility of making visible to whites and white institutions their own obscured racial identity.

This paper seeks to explore the relationship between law and morality and its relevance for establishing the legitimacy of international criminal justice (ICJ) within the context of international trials. At present, imperatives for peace and reconstruction in conflict societies are divorced both conceptually and practically from the process of punishment in international criminal trials. It argues that, in order for international trial justice to move beyond partial forms of retributivism requires a profound re-alignment of the rationales underpinning international penality and a merging of retributive and restorative justice forms. The paper suggests that the resolution of ‘truth’ must go further than this by implicating penal law and process as crucial determinants of ‘legitimate’ strategies for intervention, thereby enabling a wider choice of consequent resolutions. The paper suggests that the intrinsic value of international criminal process lies in its capacity to confront the relativism of ICJ by providing the means to engage with its plurality and so increase its legitimacy for all victims and communities affected by social conflict and war. In so doing it considers how law may be transformed into normative guides to conduct and examines the relationship between the processes of legal reasoning and sentence decision-making in international criminal trials.

Consociationalism is seen as a useful tool in dealing with intractable ethnic, religious, linguistic and other tensions in deeply divided societies and is often preferred over federalism, partition, secession, assimilation or other forms of conflict management in such societies. This article examines the validity of many of the assumptions which underlie the concept of consociationalism by looking at the experience of its use in the Pacific island state of Fiji, which has had a long record of strife between the country’s two main ethnic groups, the indigenous Fijians and the Indo-Fijians. It argues that the consociational model – particularly one which is highly prescriptive and involves strong mandatory power-sharing – has certain structural shortcomings which make it unsuitable for adoption in societies (like Fiji) where the ethnic or other cleavages run deep. In such cases, says the author, the society concerned would do well to explore other options such as a looser form of power-sharing, proportional representation, or outright majoritarian rule but with strong minority protections. The article also examines the limitations of judicial intervention in the enforcement of consociational agreements.

The United Kingdom had the experience of at least five different kinds of emergency throughout the twentieth century. The first and most serious is war, though not all wars (including the wars in Iraq and Afghanistan) create or created national emergencies. Nevertheless, the world wars of 1914–1918 and 1939–1945 almost certainly did, especially in the latter case with its risk – albeit short-lived – of invasion by a foreign power. The other causes of emergency were: second, the long-term internal conflict in Northern Ireland in what seemed like a separatist armed struggle, with one community pitted against another, and against the State (1969–2007); third, short-term but large-scale industrial action, which in at least one case (1926) was thought to border on the subversive; while the fourth has been an array of natural disasters, sometimes caused by adverse weather conditions, and sometimes caused by disease; finally, and most recently, there is the threat posed by international terrorism in the wake of 9/11 and our experiences in London in July 2005. Although emergency situations can thus arise for a host of reasons, it might be argued that the foregoing list is far from complete, with a sixth category of emergency being the various economic and fiscal crises that have engulfed the country from time to time, notably in 1931, when emergency powers were taken, and again after the end of World War II, when the country was financially exhausted by the demands of conflict.

International law has both less and more to offer to the cosmopolitan project than one might think. As currently understood, international law presages a global system of obligations comprising the convergent systems of universal customary international laws and near-universal conventional instruments (treaties), both of which legal forms are characterised by natural law tendencies. From the point of view of a pluralistic cosmopolitanism, this is a dead end. Thinking beyond these formulae requires that international law be treated as a species of general law rather than state-centred law.

This comment responds to a central issue posed by Professor Tushnet as to the way in which democracies control the exercise of emergency powers. Sands believes that ‘law’ and ‘politics’ are not mutually exclusive, and that the relationship between them suggests that a general theory on the interplay of political and legal factors in controlling the exercise of emergency powers remains elusive.

This article critically examines the prospects for achieving a comprehensive vision of gender justice in post-conflict transitional contexts. It is divided into three main sections. The first reviews the gendered limits of mainstream approaches to transitional justice and highlights gender biases in related dominant discourses, which shape how conflict, and transitions from conflict, are understood and enacted to the detriment of women. The second focuses on the benefits and limitations of engendering wartime criminal justice with particular reference to the International Criminal Court. The third considers the prospects for a more comprehensive approach to gender justice that shifts the emphasis from ‘women as victims’ of conflict to women as agents of transformation, through an examination of the significance of Security Council Resolution 1325. Ultimately, the author argues that achieving gender justice in transitions is inextricably tied to wider bottom-up efforts by women’s movements to realise a comprehensive vision of women’s human rights within a framework of critically-interpreted, universal, indivisible human rights.

In a 2002 interview exploring the darker side of modern Western secularism, Talal Asad suggested that instead of trying to fit contemporary Islam within the liberal secular paradigm we might want to ask, ‘What exactly does the liberal mean by tolerance?’ (Shaikh, 2002). Despite the overwhelming abundance of literature conceptualising liberal tolerance, Wendy Brown’s latest book shows that Asad’s question is far from commonplace or rhetorical. Regulating Aversion dissects the anatomy of contemporary liberal discourse of tolerance, challenging the truism that tolerance is an unconditional transcendental virtue, something that has for so long been taken for granted.