Transitional Justice as a Post-Revolution Constitutional Arrangement: A Law and Economics Approach

Abstract

This dissertation addresses the timely questions of transitional justice (TJ) in the aftermath of revolutions against autocratic regimes. Dealing with TJ as a constitutional arrangement through the lenses of constitutional economics explains how the classic legal analysis of TJ is mostly built on normative bases that do not respond to rational choice theory or historical examples, especially that it rarely draws the consequences of the distinction between constitutional law challenges after a revolution and international law principles post-wars. To shed more light on TJ as a constitutional arrangement after revolutions over autocratic regimes, this thesis uses a mix of legal and economic methods to answer both positive and normative questions. The dissertation consists of an introductory chapter that explains the questions analyzed and the methodology to answer them, besides the research placement in TJ literature. Chapter 2 deals with the TJ dilemma post-revolution in its first stage, i.e., why nations rarely adopt meaningful TJ processes in the first place. The chapter uses rational choice theory and forms of behavioural analyses to explain the post-revolution phase's different setups and why resorting to the typical solutions in the domain of public policies would not solve the TJ principal-agent-problem. It then provides for the limitations of a popular solution in the modern TJ literature, i.e., supporting civil society as the arbiter, facilitator, and enforcer of TJ policies. Chapter 3 tackles the second-stage TJ dilemmas, i.e., which mechanisms to choose? The chapter uses the UN Guidelines on Transitional Justice that sets five principal TJ mechanisms. It provides a cost-benefit analysis (CBA) of each mechanism and suggests policy implications out of this analysis. The CBA inspires the analysis of chapter 4 that suggests a tradeoff under constitutional laws in some of the violations that TJ deals with between due process and the retributive forms of accountability considerations. The tradeoff is used to explain the suggested efficiency of the Justice-Balance Approach that Olsen et el. (2010) associate with promoting democracy and reducing human rights violations. This approach is used as a benchmark for the case study analysis of TJ in Tunisia after the 2011 revolution given in chapter 5. The chapter presents the first index of TJ mechanisms in Tunisia through novel data collected by the author. It shows an ultimate de jure TJ approach that, until September 2021, ended in only a modest harvest in the de facto application. Although the partial application of TJ policies in Tunisia so far could still respond positively to the justice-balance approach, the lack of cooperation between the Tunisian parties added to the absence of transparency in many TJ measures threatens any positive outcomes to be expected from this approach. In addition, the gap between constitutional regulation and de facto application of TJ policies is extremely alarming regarding constitutional compliance in a system that – until recently - used to be considered the only democracy in the Arab region. Finally, chapter 6 summarizes the thesis findings in light of its limitations. It also explains the potential opportunities for future research.