ABSTRACT
This chapter considers some of the jurisprudential implications of how countries have faced up to histories of extensive suffering, discrimination, human rights violations and other large-scale injustices. It discusses a number of such problems in the context of political transitions, typically from authoritarian to democratic forms of government. When atrocities have occurred on massive scale, for example, in the commission of genocide or crimes against humanity, establishing accountability and responsibility requires analysing complex causes, which together facilitated the commission of the harms, and for which conventional criminal law categories may not be adequate. The problem of unequal or uneven treatment is another element of the rule of law dilemma – whether and whom to prosecute and for what – and it plays out particularly in the context of criminal law. The chapter considers the issue of how democratic societies address a past, and an ongoing legacy, of colonialism by looking at a case study of Australia.
