The Culture of Law: Understanding the Influence of Legal Tradition on Transitional Justice in Post-Conflict Societies

Abstract

When discussing issues of transitional justice, it is easy for those steeped in the Western tradition to assume that the best form ofjustice in the aftermath of a crisis is a trial before a judge and punishment handed down by a court according to the law. Our cultural understandings of law and the role that law and legal institutions play in the judicial process and punishment of one's peer are centered on formal proceedings and a decision as to whether an individual is guilty or innocent. This belief in, and reliance on, the court system is something which stems from our own legal cultural and experience with the law. Western legal traditions such as the common law and civil law are based on well-defined judicial institutions, written law, and the presence of legal professionals to determine what is the appropriate punishment in any situation. Not all legal traditions are grounded in these same understandings of the law and the role of law in society. There are other legal traditions in the world, where the focus has historically centered on rebuilding community harmony and trust, or reconciling the opposing parties in a conflict to restore balance. Some of these legal traditions find the basis for the laws and concepts ofjustice in religious principles,2 and some find it in longstanding customs of the community. 3 In many of these communities, these traditional views of the law and justice have been mixed over time with Western, more institutionalized forms of law.4 Even in those states, however, it is often the case that society still perceives law and justice in the traditional manner of the community rather than in the Western notion of arrest, trial, and punishment for the individual. Given the importance of legal tradition in shaping cultural perceptions about justice, this Article seeks to better understand this relationship through a study of the legal traditions of communities that have experienced conflict and