The Time of Law: Human rights between law and politics

Author: Atria, Fernando

Source: Law and Critique, Volume 16, Number 2, January 2005 , pp. 137-159(23)

Publisher: Springer

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Abstract:

This article discusses the presuppositions and consequences of different forms in which successive Chilean governments have tried to ,come to terms’ with a legacy of terror usually designated as ,human rights violations’. Thus a political strategy centred in a body like a truth and reconciliation commission is compared to a judicial strategy of individualising perpetrators and punishing them according to the rules and principles of normal criminal law. Having distinguished these strategies, the article maps them onto two conceptions of human rights: one political (constitutive of the political community) and one legal (grounding actionable claims against others). The thesis is then defended that law cannot grasp the political meaning of human rights, and thus cannot grasp the full political meaning of terror.

Keywords: formalism; human rights; human rights violations; law and politics; nunca más; reconciliation; terror; transitional justice

Document Type: Research Article

DOI: http://dx.doi.org/10.1007/s10978-005-4466-z

Affiliations: Universidad Adolfo Ibáňez (UAI), Sede Santiago, Av. Diagonal Las Torres, 2640, Penalolen, Santiago, Chile, Email: Fernando.Atria@aui.cl

Publication date: January 1, 2005

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