Transitioning to What? Transitional Justice and Gendered Citizenship in Chile and Colombia

Abstract

As the field of transitional justice has burgeoned, the hegemony of the legal frame of analysis has been convincingly challenged by a range of disciplines, such as anthropology (Theidon, 2007; 2009), political science (Elster, 2004), psychology (Hamber, 2009), and others (see generally Bell, 2009). The inadequacy of the legal frame was most cogently revealed by two particular insights. The first insight emerged from the legal discipline itself, namely the peculiar political role for law in transition, ‘that of effecting and assisting transition’ (Bell et al., 2004: 307). In conflicted or authoritarian states, the coinage of law, legal institutions, and the rule of law is degraded. Hence, paradoxically, transitional justice involves the rehabilitation of law itself, to be achieved through specifically legal devices; most commonly amnesty, truth seeking, reparations, and reform to legal institutions. Law is both the object and subject of transition. It is now widely acknowledged that the peculiar political role for law in transition cannot be adequately captured or understood by exclusively doctrinal analysis (Bell et al., 2004). The second pertinent insight is derived from non-legal analysis of transitional justice. Transitional justice devices, although legally framed and nominally past-focused, have a range of important long-term and non-legal implications for societies emerging from conflict or repression.