By Panu Minkkien

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The creation of some thirty truth commissions during the last four decades in countries throughout Central and South America, Asia, Africa and Europe has quite understandably produced a wealth of legal literature focusing on the possibilities of reconciliation and transitional justice after periods of intense internal conflict and crimes of the direst kind.1 Most of this literature rotates around a particular problem that is lucidly expressed in the introduction to the collection Lethe’s Law:

[B]ecause of the increasing demand that the past be dealt with for the sake of a shared future, and due to the inability of conventional notions of justice to succeed in this context, law is being forced to incorporate a structural and symbolic element of forgiveness. This results in a new demand being placed on law, on an unprecedentedly grand scale, to be merciful rather than just in the conventional sense.

I would agree but argue further that we are witnessing a change in scale rather than any radical shift in our understanding of law. The “new demand” identified by the authors mimics faithfully the logic of what we could call the critical dilemma of modern law. A central theme in practically all critically motivated thinking during the previous century has been the inability of modern law to deliver the objective of social justice that it expressly advocates. This central theme is evident in sociologically inspired attempts to substitute the formal rationality of law with the purposive rationality of the welfare state as well as in more metaphysical deliberations on the aporetic nature of “true” justice in relation to law. But the “new demand” also introduces a new problem as far as theoretical accounts of law are concerned, namely how to integrate forgiveness with law.