Chairs:

• Danilo Rojas Betancourth – danilo.rojas@jep.gov.co
• Adolfo Murillo Granados – adolfo.murillo@jep.gov.co
• Natali Niño – natali.ninop@unilibre.edu.co

The principlist and sanction-centered orthodoxy of the retributive justice model characteristic of criminal law scholarship must be reconsidered in light of justice models with a restorative emphasis, such as the one applied in Colombia. There, the transitional justice being implemented is guided by new legal principles that challenge the traditions of criminal law. Although both types of principles share important dogmatic aspects, they differ in scope and aims: criminal law principles are oriented toward strengthening the internal coherence of the discipline and addressing the needs of those directly involved—the parties: victims and perpetrators—whereas the principles of transitional justice, in addition to the above, more clearly envision structural institutional and social transformations.

Certain practices that reveal the unorthodox application of principles and sanctions—practices that characterize the progress of the restorative transitional justice model—demand a shift in theoretical paradigm to better explain the phenomenon, as the best-known paradigms prove too narrow to accommodate these new realities. Thus, the strict legality advocated by legal positivism views with suspicion the stretching of principles that govern restorative transitional justice. The rationality claimed by contemporary natural law theory—or iusrationalism—likewise regards with skepticism the binding force of the agreements at the core of dialogic judicial processes. And of course, legal realism, which underpins the most far-reaching forms of judicial activism, continues to face a permanent legitimacy deficit on account of its counter-majoritarian nature.

If the initial role of legal scholarship is to describe and organize its object of study—law in action—then it must acknowledge that these very practices, regarded with suspicion by certain legal theories, are precisely those that define the reality known as restorative transitional justice. Legal scholarship has the responsibility to describe them accurately before criticizing them or proposing improvements. If a given theoretical framework proves inadequate as a tool for explanation, it is clear that it is not reality that must change, but the theory that seeks to describe it.

A theoretical paradigm that would better capture the factum of Colombian restorative transitional justice is legal pragmatism. One need only consider, for example, the value that pragmatism assigns to consensus and consequences in the realms of politics and morality. The same can be said for the field of judicial adjudication.

Workshop theme: Human Rights in Reality: Access and Implementation.