Reconstructing the Rule of Law in Transitional Societies: The Role of the Principle of Due Process of Law in Achieving Post-Structural Justice

Abstract

The reconstruction of legal and political order in transitional societies requires the establishment of fundamental principles that guarantee justice, legal legitimacy, and public trust. Among these, the principle of due process of law has evolved beyond a merely procedural rule to become a substantive criterion for assessing the legitimacy of emerging legal orders during transitions. This article, adopting a descriptive–analytical approach and utilizing comparative methodology, examines the position of this principle within the framework of post-structural justice and its relation to the concept of the rule of law in post-authoritarian contexts. Within the article’s theoretical framework, the evolution of the concept of due process of law in international legal instruments and the jurisprudence of human rights courts is explored, along with its correlation to the rule of law under exceptional circumstances. Subsequently, by analyzing the experiences of four selected countries—Rwanda, South Africa, Iraq, and the former Yugoslavia—it is demonstrated that the observance or neglect of this principle has a direct impact on the success or failure of transitional justice mechanisms, public trust, and the legitimacy of newly established legal structures. The article emphasizes that any form of political compromise, general amnesty, or design of temporary justice institutions that lacks a procedural and legal framework rooted in due process will not only fail to deliver justice but also risk re-instigating instability. Finally, the article offers strategic recommendations for institutionalizing this principle in international law, designing oversight mechanisms, reforming judicial procedures, and strengthening legal doctrines in support of this norm. The article concludes that the institutionalization of the principle of due process of law is a prerequisite for establishing the rule of law and achieving justice in transitional societies.