Revisiting the Rule-Of-Law Dilemma in Democratic Transitions: Toward a Future-Oriented Theory of Legitimacy

This article examines ‘the rule-of-law dilemma’ in the context of democratic transition, with a focus on developing a theoretical foundation for the legitimacy of legal paradigm shifts during transitions. The research is motivated by the legitimacy crisis encountered in Taiwan during the process of turning the transitional justice policies into positive laws, which serves as the backdrop for exploring the broader theoretical implications of ‘the rule-of-law dilemma’ in transitional justice research. The first section introduces the rule-of-law dilemma in Taiwan’s transitional context, highlighting its significance as a problem that raises broader questions about legitimacy of legal paradigm shifts during democratic transitions. The second section draws on critical legal theory to show how legal approaches to transitional justice often conceal their ‘a-legality’, ultimately masking the dilemma rather than resolving it. The third section points out that the rule-of-law dilemma in transitions shares a similar structure with ‘the paradox of constitutional democracy’, suggesting that ‘dynamic constitutionalism’ proposed by deliberative democracy theorists offers valuable insights for reconsidering the problem of legitimacy in transitions. The fourth section, drawing on dynamic constitutionalism with the focus on the temporal dimension, constructs a future-oriented theoretical foundation for the legitimacy of legal paradigm shifts during the transitional period. The article concludes by reflecting on the implications of these theoretical insights for the study of transitional justice and governance.