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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics
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III. Legalism Versus Prudentialism

A core aim of this book has been to determine which theoretical approach— legalism or prudentialism—better accounts for U.S. policy on transitional justice. As discussed above, the primary factors that influenced USG decision-making on particular transitional justice options were politics, pragmatics, and normative beliefs. This finding suggests that prudentialism, rather than legalism, is a superior explanatory framework. More generally, legalism is susceptible to some of the same flaws noted by those who question Democratic Peace Theory1 (another prominent liberal paradigm, which Bass uses to introduce legalism by claiming his “argument is related to the democratic peace school.”2). In particular, there are problems with legalism’s empirical claims and causal logic.

A. EMPIRICAL CLAIMS

This book’s findings challenge Bass’s legalism by interrogating his theory’s empirical claims about liberal and illiberal states and the homogeneity he imposes on war crimes tribunals themselves.3

 
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