Feminism, Postcolonial Legal Theory and Transitional Justice: A Critique of Current Trends

2012 ◽  
Vol 1 (2) ◽  
pp. 237-275 ◽  
Author(s):  
Khanyisela Moyo
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Transitional Justice ◽  
Legal Theory ◽  
Feminist Legal Theory ◽  
Current Trends

Inspired by feminist legal theory and postcolonial literal studies this article interrogates the ‘transitional justice discourse’ and coins critiques which re-examine the discipline’s key tenets; namely, democracy, liberalism, rule of law and human rights. It argues that while transitional justice can be seen as one of the masculine human rights strategies that are reminiscent of imperial intervention in the lives of postcolonial subjects, it is open to seizure by the same. This is possible in transitional contexts since these situations create opportunities for stakeholders to rethink the inadequacies of the accepted discourse, and to subscribe to new ways of seeking justice.

Os crimes contra os direitos humanos praticados na ditadura militar brasileira: Justiça de transição e persecução penal

2020 ◽  
Author(s):  
Marcos José Pinto
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Transitional Justice ◽  
Criminal Prosecution ◽  
Military Dictatorship ◽  
Criminal Offenders ◽  
State Agents ◽  
Democratic Rule

This book aims to analyze the crimes against human rights that offended the Democratic Rule of Law in Brazil, committed by state agents in the Brazilian military dictatorship (1964/1985), asserting that they remained unpunished. In view of this, to address this issue, it is proposed that criminal offenders be held liable. The issue of our slow Transitional Justice will also be examined, arguing for the criminal prosecution of state agents who violated human rights in Brazil, demonstrating how and how this can occur, all in order to move away from impunity, hitherto guaranteed by the Brazilian Amnesty Law, ensuring the effectiveness of justice and the strengthening of democracy.

Part III Regimes and Doctrines, Ch.38 Theories of Transitional Justice: Cashing in the Blue Chips

2016 ◽  
Author(s):  
Nesiah Vasuki
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Transitional Justice ◽  
The Other ◽  
Practical Significance ◽  
Political Society ◽  
Political Imagination ◽  
The Rule Of Law ◽  
The One

This chapter examines the utopias called forth by the marriage of human rights accountability mechanisms on the one hand, and, on the other, arguments about the practical significance of these initiatives as preconditions for development, democracy, and political society. Transitional justice is seen to marry the ethical charge of the human rights field’s march against impunity, with an instrumental potential facilitating transition from the rule of violence into the rule of law. If the normative theories and agendas implicated by this marriage are advanced as being in the interests of justice, the accompanying instrumental theories and agendas are advanced in the interests of transition. Justice and transition operate here as allied and mutually reinforcing aspirations of and rationales for transitional justice institutions. Thus, this chapter identifies and analyses the stakes that attend this marriage of ‘ethics’ and ‘expertise’ in constituting the utopian political imagination of transitional justice.

scholarly journals Orientalism in the European Court of Human Rights

2019 ◽  
Vol 14 (1) ◽  
pp. 31-63
Author(s):  
Charlotte Helen Skeet
Keyword(s):  
Human Rights ◽  
Cultural Studies ◽  
Legal Theory ◽  
Negative Impact ◽  
Muslim Women ◽  
Final Part ◽  
Legal Knowledge ◽  
Feminist Legal Theory ◽  
Post Colonial ◽  
European Court

Abstract This article provides an anti-Orientalist critique of jurisprudence within the European Court of Human Rights. Discussion is located in the context of the longstanding debate over what it is to be “European” and an awareness of how these wider discourses shape rights adjudication at national and intra-national levels in Europe. Argument draws on literature from post-colonial theorists, cultural studies, and feminist legal theory which identify and discuss “Orientalist” discourses to analyse the production of legal knowledge and jurisprudence from the European Court of Human Rights. The article argues that Orientalist discourses affect the ways that the Court constructs and positions both the claimant and the respondent state in human rights claims. These constructions influence cases involving Muslim claimants and have a particularly negative impact on the outcome of claims by visibly-Muslim women. The final part of the article suggests ways that these negative discourses and constructions can be countered.

scholarly journals Justiça e segurança pública desde uma perspectiva de transição

2017 ◽  
Vol 18 (2) ◽  
pp. 491-508
Author(s):  
Antonio Sérgio Escrivão Filho ◽  
Fernando Luis Coelho Antunes
Keyword(s):  
Human Rights ◽  
Political Violence ◽  
Rule Of Law ◽  
Transitional Justice ◽  
Public Institutions ◽  
Public Security ◽  
Institutional Reforms ◽  
Reconstruction Process ◽  
Democratic Rule ◽  
Delayed Reconstruction

Resumo: O Brasil passou por um processo tardio de reconstrução da sua história no que diz respeito à Justiça de transição. Entre os elementos que desde uma perspectiva conceitual compõem uma noção de Justiça de transição encontram-se os processos compreendidos pelas reformas institucionais, caracterizados pela realização de medidas voltadas à reeducação e refuncionalização das instituições públicas, a fim de reorientá-las para o cotidiano do Estado Democrático de Direito, com vistas à promoção dos direitos humanos, extirpando resquícios autoritários das estruturas normativas, institucionais e culturais do Estado. No interior desse debate, as instituições de justiça e segurança pública são comumente identificadas como alvos prioritários de processos de transição, dada a sua relação intrínseca e direta com o tratamento da violência política sistemática e a restrição de direitos e liberdades. Nesse sentido, o artigo apresenta uma discussão sobre o cenário das reformas institucionais referentes ao poder judiciário e aos sistemas de segurança pública, em um esforço analítico para contribuir com os debates realizados no contexto tardio de Justiça de transição no Brasil.Palavras-chave: Justiça de transição. Reformas institucionais. Poder Judiciário. Segurança pública. Brasil. Abstract: Brazil has passed through a delayed reconstruction process of its history, from a perspective of the so called transitional justice. Among the elements that usually make up a conceptual notion of transitional justice, it can be found the processes understood by institutional reforms, characterized by carrying out measures aimed at reeducation and refunctionalization of public institutions, in order to redirect them to the Democratic Rule of Law, and the promotion of human rights, putting away authoritarian remnants from normative, institutional and cultural public structures. Within this debate, the institutions of justice and public security are commonly identified as priority targets for transition processes, because of its intrinsic and directly relation to the treatment of systematic political violence and the restriction of rights and freedoms. In this sense, the article presents a discussion on the scenario of institutional reforms regarding the judiciary, public security in the context of the late Transitional Justice in Brazil.Keywords: Transitional justice. Institutional reforms. Judicial role. Public security. Brazil.

Conclusions on Good Governance

2019 ◽  
pp. 270-280
Author(s):  
Henk Addink
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal Theory ◽  
Good Governance ◽  
Building Blocks ◽  
Theory Approach ◽  
The European Union ◽  
Legal Concept ◽  
The Rule Of Law ◽  
The Right

Good governance is a legal concept and a cornerstone of the modern state and presented in the book as the third cornerstone of a modern stone (alongside the rule of law and democracy). We concluded in relation to the development of the concept of good governance in part I that principles of good governance can only be legal principles when they have been somehow codified legal effect. The good governance principles became more concrete by enumerating six groups of principles (properness, transparency, participation, effectiveness, accountability, and human rights) which are found in many documents of national, regional, and international context. From the legal theory approach on good governance we discussed the character of these principles. In part II we specified the principles of good governance and starting with the principle of properness, which has also been developed under the name of the principle of natural justice. The second, the principle of transparency, is connected to the principle of participation which both have roots in the concept of democracy. The principles of effectiveness and accountability both have a relationship to the institutional structure and functioning. The last principle is the human rights principle which is linked to the rule of law but also to democracy. Several principles of good governance were already developed in regulations and in codes which are the building blocks for the development of the right to good governance. The implementation of good governance and the comparison between countries were explained in Part III. After that, the regional level was discussed—the European Union and the Council of Europe were chosen as models as far as it was comparable. The last chapter was about the implementation on the international level.

Transnational Law and Feminist Legal Theory

2021 ◽  
pp. 1006-1028
Author(s):  
Ratna Kapur
Keyword(s):  
Human Rights ◽  
Violence Against Women ◽  
Legal Theory ◽  
Feminist Legal Theory ◽  
Transnational Law ◽  
Security Regime ◽  
Sex And Sexuality ◽  
Women's Human Rights ◽  
The Relationship ◽  
Postcolonial Feminist

This chapter examines the relationship between transnational law (TL) and feminist legal theory (FLT), focusing on the specific historical and political trajectories advanced by FLT in the transnational context and how they influence understandings of gender, sex, and sexuality in law. It demonstrates how these concepts have come to be understood in women’s human rights campaigns against violence against women (VAW) in both the domestic and global contexts. The chapter sets out how these concepts have been taken up in FLT, which in this overview, includes the poststructural, queer, and postcolonial feminist critiques of these concepts. The chapter then illustrates how in the context of VAW, “solutions” have mainly taken the form of carceral measures and a general tightening of the sexual security regime. The chapter provides a fuller understanding of the transnational effects of FLT and its limitations as a progressive project.

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