ABSTRACT
The ‘big bang’ of military or political revolution that accompanies the setting free of
powerful dynamics of transition and transformation, of post-conflict, post-apartheid
and post-war justice, has triggered a widespread and wide-ranging research agenda
around the world that is concerned with the chances of a new ‘beginning’ and the
need to account adequately for the legacies of past experiences in the process (Teitel,
2000). From post-apartheid South Africa (Gross, 2004), the East-and West-German
narratives of the Nazi past (Herbert and Goehler, 1992) and Germany’s Reunification
(see Markovits, 2001), to post-genocide Rwanda (Mgbako, 2005; Agbakwa, 2005)
and the ‘transformative occupation’ (Bhuta, 2005) of Iraq (Anderson, 2004; Frame
2005), the existing accounts of this process challenge our understanding of how
to go about the future while minding the past. In a crucial way, such fragile and
vulnerable societal projects also challenge the role of law as we learn to recognize
its distinct role in ascertaining past deeds committed, plights suffered and answers
found to the often unspeakable events of the past. Importantly, coupled with this
reconstructive, dialogical dimension of the law’s addressing of the (and its) past,
we find its institutional dimension.2 While the former encompasses accountability,
reconstruction and ‘truth’, the latter relates to the re-creation or foundation of
democratic institutions, constitutions and the rule of law.3 But it is this tension between
the allegedly extraordinary status of the events on the one hand, and the regular and
reliable workings of the legal order on the other that informs and structures our
approach to bringing the law to bear upon these challenges. Is law silent in states of
exceptions4, during les heures zero, and at notorious ‘new beginnings’, suggesting
something uniquely separate from the otherwise regular or violent workings of the
law (Hay, 1992)? New beginnings offer themselves as opportunities for coinciding
legality and legitimacy, yet the law of new beginnings is in fact tainted and burdened
by the past experiences of law that question the acceptable meaning and substance
of the very term itself (Radbruch, 1946, p.105).5 As Ruti Teitel (2000, p. 6) puts it,
‘What is deemed just is contingent and informed by prior injustice.’
