Law’s Emergence: Transitional Justice

in
Evolutionary Perspective

Marc Amstutz

I.
When Jacques Derrida came back from South Africa in 1998,
full of impressions and reflexions on the Truth and Recon-
ciliation Commission, he draw a strange picture of what he
had seen: the picture of a fragile world in which pardon
may have a place although nothing of what had happened un-
der the apartheid would ever fade away. A similar sense of
fragility stems from the numerous studies that transitional
justice sholarship has yielded since the 1980’s. These
studies depict a transitional law struggling with the im-
possibility to fully meet the prerequisites of what is gen-
erally called the rule of law.
Derrida’s world of mercy and the studies on transitional
law share a distinctive feature: They both reveal a differ-
ence, but not a difference in a static, inert, or fixed
meaning. Rather, they reveal the drawing of a difference,
i.e. the movement of emergence of a difference. It is pre-
cisely this movement which is important since it makes
something visible which traditional distinctions do not
catch. This “something” is what the concept of différance –
the emblem of Derridean philosophy – brings to light and
which is perhaps best expressed with the words “deferral”
or “suspension of an emergent difference”. This becomes
more evident if we consider what follows:
Pardon in the sense of Derrida is obviously paradoxical. In
order for pardon to be possible, so goes Derrida’s claim,
the unpardonable must still be present after pardon has
been expressed. For pardon to be able to occur and last,
the unpardonable must subsist and persist. We have here a
difference (unpardonable/pardon), yet this difference is
not stable, not fixed; it is, in some sense, suspended
since both sides of the difference are all together pre-
sent. The structure of transitional law is similar: it aims
at undoing past wrong. Yet, as ex post facto law, it seems
to amount to new wrong; it looks as if it would repeat in

1
another form the wrong that it is trying to undo. Wrong and
right are simultaneous; the diffence between the opposites
is differed.
Orthodox legal scholarship ist confused about this struc-
ture of transitional law and unable to bring it together
with the paradigms on which itself is built. Although a lot
of scholars have in the last years put forward inspiring
thoughts on how to tackle the issue, it is fair to say that
the main arguments are in their essence still the same as
those at least embryonically developed in the now famous
debate between H.L.A. Hart and Lon Fuller in 1958. This de-
bate is well-suited to illustrate the shortcomings of the
tenets of orthodox legal scholarship. It focusses on a
postwar German case about a woman who got rid 1944 of her
husband by denouncing him for having defamed Hitler while
home on leave from the army. The husband was sentenced to
death pursuant to two statutes enacted during the Nazi re-
gime. In 1949 the wife was prosecuted in a West German
court. She pleaded that her husband’s sentence was pursuant
to the Nazi statutes and that she had committed no crime.
She was nonetheless held guilty. That her husband was sen-
tenced by a court was deemed immaterial since the Nazi
statutes were “contrary to the sound conscience and sense
of justice of all decent human beings” (1958: 619).
For Hart, defending the Posivist school of Jurisprudence,
this case which has “been hailed as a triumph of the doc-
trines of natural law and as signalling the overthrow of
positivism” (1958: 619), is simply bad law. Declaring stat-
utes established for several years not to have the force of
law is, in his eyes, questionable since it sacrifices the
doctrine of non-retroactivity, “a very precious principle
of morality endorsed by most legal system” (1958: 619).
This position has the advantage of maximum clarity: “law is
law”. There is no discontinuity in the world of law; life
is clear-cut since it suffices to abide by the law which is
currently in force. Anything else would amount to the “ro-
mantic optimism that all the values we cherish ultimately
will fit into a single system, that no one of them has to
be sacrified or compromised to accommodate another” (1958:
620). To sum up: A Derridean suspension of law leading to
rules with temporal overlaps and, thus, to a complex inter-
twining of norms is nothing a lawyer could or should deal
with. Therefore, it is of no use to ask whether a younger
law quashes older law as long as the older law is to be
deemed law according to its own standards.

2
Hart’s neat legal geometry appears very quixotic to Fuller
who proposes “to move a little closer within smelling dis-
tance of the witches’ caldron” (1958: 650). He begins by
acknowledging the fact that it is normal for a law to oper-
ate prospectively. Yet, he sees an “occult unpersuasive-
ness” in any assertion that retroactivity violates the very
nature of law itself. This he illustrates by unveiling the
“true nature of the dilemma” confronted by postwar Germany
in seeking to rebuild her shattered legal institutions:
“Germany had to restore both respect for law and respect
for justice. Though neither of these could be restored
without the other, painful antinomies were encountered in
attempting to restore both at once … . [T]he dilemma … [is]
that of meeting the demands of order, on the one hand, and
those of good order, on the other. Of course, no pat for-
mula can be derived from this phrasing of the problem. But,
unlike legal positivism, it does not present us with oppos-
ing demands that have no living contact with one another,
that simply shout their contradictions across a vacuum”
(1958: 657). According to Fuller, a way out of this dilemma
can only be found if we are prepared to go beyond a formal-
ist look at Nazi law. Only if we take the “inner morality
of law itself” (1958: 660) into consideration, can we hope
to unravel the mystery. In this respect, there is nothing
shocking to Fuller in saying that Nazi law departed so far
from the morality of order that it ceases to be law (1958:
660). Therefore, he pleads for a retroactive statute. Not
because it is the “most nearly lawful” way of making unlaw-
ful what was once law. Fuller’s thoughts go in another di-
rection: “I would see such a statute as a way of symboliz-
ing a sharp break with the past, as a means of isolating a
kind of cleanup operation from the normal functioning of
the judicial process” (661).
To assess the positions of Hart and Fuller, I could now, of
course, engage into stressing the differences between them.
They are without any doubt numerous and profound, and many
authors went through the exercise of singling them out.
Yet, it seems to me, for reasons which will become apparent
soon, more rewarding to pinpoint what they have in common.
If we look at the structure of Harts’ argument, we see a
law forming a temporal chain of different links, each link
representing the law of a certain polity at a certain point
in time. The polities are replacing one another over time;
the substance of their laws as well as the form in which
these laws are passed vary. But the chain is without any
gap, and especially without any time gap. Hart’s world view
is marked by a continuity of laws in time. Legal disconti-

3
nuities do not and cannot exist. Hart’s technique consists,
on the one hand, of abstaining from any consideration of
the inner value of these laws, and, on the other hand, of
considering exclusively whether these laws are in force or
not. This allows him to deny any special problem posed by
transitional law since this kind of law is simply and
solely new law. Furthermore, in his theory, a retroactive
law is conflicting with the very idea of the rule of law
and must be regarded as null and void. What we have here is
a straight analogon to physics’ or economics’ general equi-
libria.
It might sound strange to assert that Fuller’s position has
something in common with Hart’s. Yet, if we take a look at
the structure of his claim, we may discover the same legal
continuity in time backing up the arguments Fuller puts
forth. His central thesis is as follows: The German stat-
utes are not law because they are untenable from a moral
point of view. Obviously, this way of considering things
leads to something like a legal gap for the time the Nazi
regime was in place. Now, this gap makes Fuller noticeably
feel uneasy. A period for which no laws are in force has
not been envisaged so far by mainstream legal scholarship
and seems inconceivable. In order to by-pass this legal
anomaly, Fuller recommends a retroactive statute. This
statute has a high symbol value that emphasizes a “sharp
break with the past” (1958: 661) and the flaw of its retro-
activity is cleansed by virtue of this symbolic function.
But this alleged merit should not put out of sight that it
is precisely this statute which fills the gap in the legal
past which has arisen because of the subsequent invalida-
tion of Nazi statutes. The temporal continuity of law is
saved, although the technique Fuller applies is different
from Hart’s technique. Where retrospectively gaps in law
become apparent, so goes Fuller’s argument, they are to be
filled with an ex post facto construction. And, insofar, it
may be said that the solution Fuller advocates has the same
feature as the one Hart offers: A chain of laws whithout
missing link – a legal world in constant equilibrium.
Fuller’s view like Hart’s closes the eyes upon the fact
that law may be imperfect, deficient, and insufficient. The
existence of a dark side of law, of tragedies in its world,
of a law in ruins is eluded.
It is beyond doubt that the cases made by Hart and Fuller
possess each some merits, but I cannot hide that I feel
discomfort when I am reading what these authors wrote. My
main difficulty – to which I will limit my further thoughts

4
in this paper – is that I cannot refrain from thinking that
neither Hart’s nor Fuller’s approach correlates in any way
with the pain and the sorrow that soaked real life in Ger-
many during the Hitler years. Transitional law should not
only be responsive for such suffering; it should also meet
it with normative standards that are the fruit of the trou-
bled times in which the legal problems at stake material-
ized (meeting them with standards lacking any link with the
legal issue to settle is nothing else but justice in an
airtight box). At least the last condition, as will be
shown later, implies that the concept of temporal continu-
ity which underpins Hart’s as well as Fuller’s position,
should be abandoned. But here, it seems that we are leaving
the genuine domain of legal science and that a dogma of
long standing and also prevalent in western social science
is suspected of inappropriateness. This dogma is time’s ar-
row and the question it raises is whether it applies to
transitional law.

II.
How legal rules relate to time is the subject matter of a
theory of legal evolution. Yet, orthodox legal scholarship
has hitherto been rather blind for issues linked to this
topic. Hence, it lacks the requisite sensitivity for evolu-
tionary processes in the world of law. If we take again,
for illustration purpose, the vision of law which material-
izes in Hart’s and Fuller’s debate, we may find that it re-
duces the relationship between law and time to a binary
code: either law is in force or it is not. The intricacies
of law’s emergence and of law’s demise are simply masked
out. But without considering these intricacies, the phe-
nomenon of transitional law will remain blurred and inac-
cessible for legal theory.
A powerful theory of law’s evolution has been presented by
Niklas Luhmann in his opus magnum on “Law as Social System”
(1993). This theory is based upon the mechanisms of varia-
tion, selection and retention, that go back to the work of
Charles Darwin. Luhmann conceived these mechanisms anew, in
order to integrate them in his theory of autopoiesis. This
new conception has literally turned the fundamental prem-
ises of classical Darwinism (selection as external evolu-
tionary factor) upside down (selection as internal evolu-
tionary factor). This enabled Luhmann to bring to the fore
the internal dynamics of the evolving system, that has been

5
underexposed in classical Darwinism, thus making it an ob-
ject of legal analysis.
However, by incorporating these Darwinian ideas in his the-
ory, Luhmann is caught in a quandary: He is forced to adopt
the adaptational logic that goes along with the three evo-
lutionary factors of classical Darwinism. Problematic is
this since adaptionism offers no criteria for the rejection
of evolutionary hypotheses. And this is so, because adap-
tionism itself is the criterion for the appraisal of such
hypotheses. Since there is always a certain number of plau-
sible adaptional hypotheses, a choice on the basis of the
adaptionism criterion is clearly unfeasible. The trouble
with Luhmann’s theory lies thus in the absence of a theo-
retically well-founded criterion that would allow him a se-
lection out of a set of evolutionary hypotheses. Further-
more, it remains silent about law’s constitution. Luhmann
is fully aware of his theory’s shortcomings, yet he con-
ceals them behind rhetoric: “The designation of a Begin-
ning, of an Origin, of a ‘Source’ and of a (or no) “Before”
is – in a system – an internally fabricated myth – or the
narration of another observer” (1998: 441).
That this is the point where we need new insights should
not be too contentious. This becomes immediately apparent
when considering again the paradox which is at the heart of
transitional law: Persons that have carried out certain ac-
tions which, under the old regime’s rules, were fully legal
(or perhaps even mandatory), are now to be judged under new
rules which declare their past actions as illegal. Here we
are confronted with a phenomenon of legal emergence. And
this phenomenon remains utterly enigmatic to us. Of course,
this does not come as a surprise. We are used to consider
law in an environment of unshattered legal instutions, i.e.
an environment of a functioning administration of justice.
That is perhaps the main criticism to be addressed to Hart
and Fuller who just looked at the case of the odious German
woman from the point of view of conventional legal theory
which is more or less immune for evolutionary arguments.
This criticism hints – at least indirectly – at the answers
that Luhmann’s theory of legal evolution is expected to be
able to give, should it explain what the nature of transi-
tional law is. Obviously, a transitional “change of law”
cannot be grasped as mere adaptionist process. Instead, it
should be conceived of as an evolutionary jump. In its
paradoxical structure, it cannot be understood on account
of the three Darwinian factors, variation, selection, re-
tention. Therefore, an additional evolutionary concept is

6
needed that is capable of explaining the system’s origin
not as a vague constructivist metaphor, but as a process to
be specified on a theoretical basis. And such a concept is
even more urgent, as this kind of legal emergence does not
constitute a negligible exception, but, as will be shown, a
main prototype of the emergence of law as such. The ques-
tion hence is: did research on evolution carried out after
the publication of Luhmann’s “Law as Social System” bring
up new results that could significantly contribute to the
further development of Luhmann’s theory of legal evolution
in the sense that I have described? At this point I would
like to refer to the work of Stuart Kauffman and Per Bak
who both have explored for years complexity issues, espe-
cially in evolutionary settings. The concepts they devel-
oped are based upon the assumption that there is not only
one source of order, but two: Selection and spontaneous or-
ganization. If Luhmann’s theory of legal evolution could be
enhanced and expanded through these concepts, then the
chances for framing the question of the origins of law in a
more precise way raise significantly.
The focus of Kauffman’s research (1995) has been directed
to the issue why selection is not the only engine of evolu-
tion and for what reason spontaneous organization is also
required. Namely, Kauffman has been intrigued by the ques-
tion of how selection and spontaneous order interact in the
evolutionary process. After years of computer simulation,
he came to the conclusion that selection cannot work with-
out spontaneous organization. This means above all that the
system which is evolving and which constitutes the target
of selection must possess particular properties, i.e. an
internal, self-referential order which operates in a very
special fashion. This internal order must be able to drive
the system persistently to the edge of chaos and, thus,
guarantees its faculty to evolve. But why should the sys-
tem’s presence at the edge of chaos boost its evolvability?
Kauffman’s answer is that the edge of chaos induces the
evolving system to strengthen its dynamics characteristics
so as to enable it to operate in an ordered regime which
borders on chaotic regimes. If this succeds, the system
will display an improved capacity to absorb perturbations
from the environment and, thus, to stabilize itself. Nei-
ther is it then numb to external irritations, as would be
e.g. a crystal, nor is it then oversensitive and hence
prone to drift into chaos at the first tiny windblow.
Rather, at the edge of chaos, it is creative and apt to
quickly find solutions to new problems.

7
Kauffman’s wonderful theory, which has been sketched here
in almost improper brevity, is certainly a seminal contri-
bution to evolutionary theory. One conundrum that remains,
yet, is how spontaneous organization comes about. This is,
as James E Strick (2002) has recalled in recent years, a
very old issue, and the answers are not too many. The the-
ory of self-organized criticality (SOC) that has been de-
veloped by Bak is one of the most advanced attempt to shed
light in this murky area. The basic idea is simple: in na-
ture, systems have the tendency to evolve into a poised,
“critical” state which is far out of balance, where minor
perturbations may lead to major events, called avalanches.
Hence, evolution does not follow an even gradual path, but
occurs through catastrophes. The way leading to such events
is travelled whithout guidance from any outside agent.
Solely the dynamical interactions among the system’s indi-
vidual elements establish the critical state. In other
words, the critical state is self-organized. This is what
Bak calls SOC.
The example of the sandpile – recurrently used by Bak –
will help to make SOC less abstract: A child at the beach
lets sand trickle down to form a pile. Initially, the pile
is flat. The individual grains stay close to where they
land. Their motion is a result of their own physical prop-
erties. As the process goes on, the pile grows and becomes
steeper. From time to time, small sand slides will occur.
Gradually, the sand slides become larger and larger. Even-
tually, one of these sand slides will embrace the whole or
most of the pile; what happened is, in the jargon of SOC,
an avalanche. At this point, the system is “critical”. Its
behavior cannot any longer be understood in terms of the
behavior of the individual grains. This highlights three
crucial points:
(1) Avalanches are events with a dynamics of their own.
This dynamics can be grasped only from a holistic descrip-
tion of the properties of the whole pile. A reductionist
description of its individual elements does not help any
further. At the same time, this insight indicates that
“[l]arge avalanches, not gradual change, make the link be-
tween quantitative and qualitative behavior, and form the
basis for emergent phenomena” (1996: 32).
(2) The process of self-organisation happens over a com-
paratively long transient period. It cannot be studied
within a time frame which fragments artificially the compo-
nents of evolution. As Bak remarks, “[t]he phrase ‘you can-

8
not understand the present without understanding history’
takes on a deeper and more precise meaning” (1996: 31).
(3) SOC also has a significant implication for Darwinian
theory: If we try to locate the role the dynamics of ava-
lanches within the frame of Darwinism, then this dynamics
must be considered to represent the link beween Darwin’s
view of continuous evolution and the punctuations repre-
senting sudden quantitative and qualitative changes. Bak
makes this point clear by referring to his sandpile exam-
ple: “Sandpiles are driven by small changes but they never-
theless exhibit large catastrophic events” (1996: 131).
With SOC Bak manages to provide us elements for a theory of
self-organization which is, to a certain degree, complemen-
tary to Kauffman’s concept. I will not dwell on this issue
in any detail since a lot of problems are still unresolved
here. The question with which I am concerned with is
solely: What can we derivate from Kauffman’s and Bak’s con-
cepts for a better understanding of law’s evolution? Our
starting point was that one of the foremost evolutionary
theory of law, the one which Luhmann has put forward in his
much debated book “Law as Social System”, is a solid basis
for explaining the ordinary course of law’s movements. Yet,
its potential to lift the mysteries of law’s emergence is
insufficient. In a transitional law context, this limita-
tion is fatal. The pertinence of Kauffman’s and Bak’s in-
sights for the present purpose becomes therefore obvious.
But how are we to translate them into the language of legal
scholarship?

III.
The evolutionary trinity of variation, selection and reten-
tion, is ultimately a gradualist scheme. Catastrophes are
out of its explanatory reach. This is disturbing since
transitional law, our topic here, must precisely be envis-
aged as a catastrophic event: It establishes abruptly a re-
gime fully different from the one it replaces. In order to
understand what happens in such a situation, we must go be-
yond Luhmann’s concept. But what can Kauffman and Bak learn
us in this respect?
First of all, as I have suggested elsewhere (2001), law is
only able to fulfill its task if it possesses sufficient
evolvability. A motionless law is a dead law. Law must ac-
cordingly be thought about as one of Kauffman’s systems op-
erating at the edge of chaos. Concurrently, law is to be
seen as a self-organizing system. Its development is not

9
only determined by selective processes, but also by its in-
ner, self-reflective order. Similarly to the life science
issues Kauffman is primarily interested in, this raises the
question of how the self-organization of law has to be mod-
elled for legal theory purposes.
As we shall see, the self-organization concept on which SOC
builds is a very powerfull tool to explain what exactly
goes on during this puzzling phase in which law emerges. At
the same time, SOC forces us to make very speculative as-
sumptions on certain aspects of law. Why? The principal
reason is that the application of the SOC concept on law
asks for an answer to the question of what exactly law is
pieced together. Or, put differently: What is the stuff law
is made of? This question may sound odd. Nevertheless, in
order to reason by analogy to the sandpile dynamics, we
cannot avoid the arduous investigation of the elemental
structure of the law. If it is true – as the SOC concept
suggests for law – (1) that the evolutionary jump of tran-
sitional law rests initially on the individual dynamics of
the constituents of the future law, and (2) that these con-
stituents aggregate steadily so as to bring about a holis-
tic dynamics which are the condition for a new law to
“catastrophically” emerge, then the nature of these con-
stituents plays a crucial role in the understanding of
law’s emergence.
In this respect, most theories on legal rules stick to ei-
ther one of two lines of reasoning: the thesis of law com-
ing “from above” or coming “from below”. This alternative
may also be characterized by a metaphor: Hans Kelsen versus
Eugen Ehrlich. It is well-known that Kelsen stands for a
concept of law based on liberal polical theory which draws
on the equation between nation, state, and law. This is the
archetype of an autonomous law, strictly closed to moral or
other arguments drawn from specific situations arising in
society at large. From a notional standpoint, it is gov-
erned by what might be called the “tyranny of legitimacy”:
Only as far as powers have been delegated to the state in a
legally effective mode, can it legislate in a binding and
obliging manner. What has not gone through the pipeline of
legitimate legislative bodies, cannot be deemed to be law.
The mutual dependencies of law and society remain penumbral
and left to the contingencies of hazard. In sharp contrast
to this view, holding the state for the one and only crea-
tor of law, is Ehrlich’s theory. There is no better way to
describe this theory than quoting the much celebrated
statement in the foreword to his “Fundamental Principles of

10
the Sociology of Law” that legal change has, at any time in
history, neither been driven by legislation nor by case
law, but mainly by society itself. For Ehrlich, the “living
law” grows out of popular habits, group usages, usances in
trade, long-established custom, etc. A law deserving this
name must show this interconnectedness with social prac-
tices. Otherwise, it would lack the required responsiveness
for the society it is supposed to serve. And such a flaw,
one could say, is a delegitimizing factor in Ehrlich’s
eyes.
The Kelsen/Ehrlich-dilemma encapsulates the darkest secret
of law. To disclose this secret has not been possible thus
far and will perhaps never be. The goal here is not to play
Kelsen off against Ehrlich. Rather, what I intend to do, is
to question two lines of reasoning fairly widespread in
common law as well as in civil law about the issue of the
origins of law. In this respect, Kelsen is noncommittal (as
is Luhmann): Where the substance of law comes from, is left
open. What Kelsenians are interested in, is whether the
legislative procedures have been followed. Of course, there
are minimal standards to be complied with (human rights,
constitutional guarantees etc). But these standards are all
law-internal and do not feed on societal processes. At this
point we have reached a crucial bifurcation in the archi-
tecture of the theory: Kelsen’s silence on where does law
come from. How should this silence be interpreted? It
should not, perhaps against the first impression, be under-
stood as saying that law is a creatio ex nihilo. Kelsen’s
theory frame simply does not ask for environmental intui-
ton. Do Ehrlich’s thoughts help further here? That the
“factory of law” is located in life’s facts, is, at least
empirically, more or less acknowledged since this author
has written his seminal book. Ex facto ius oritur: Law
finds its real sources in custom, governance, possession,
etc. and Ehrlich discredits all those who thought that an
insuperable line is drawn between the factual and the nor-
mative. Yet, Ehrlich remains strangely obscure with regard
to the question of how this line can be crossed. The “pri-
mary legal order” of living law is, according to him, over-
laid by a “secondary legal order” built by state regula-
tions and lawyers’ rules. He then assumes that these paral-
lel legal orders are interacting so as to giving each other
reciprocal “inspiration”. But this, at the very end, cannot
mean anything else than a basal separation of the two or-
ders. Ehrlich does not really envisage a merger between
them.

11
A lot of scholars have investigated Ehrlich’s perplexing
intersection. Especially the issue of whether there can be
“a flow of societal norms and standards into the legal
process” (Ladeur 2006: 98). Although some powerful meta-
phors or descriptions, such as Jean Carbonnier’s infraju-
ridique (2004: 365) or de Sousa Santos’ Pasargada legality
(2002: 99), have been proposed, hardly anybody has eventu-
ally gone beyond Ehrlich. One of the very few exceptions is
Gunther Teubner’s version of a legal neo-pluralism (1996).
He suggests to analyse the interwoveness of social and le-
gal norms in terms of a clear-cut separation of autonomous
discourses and of their structural coupling. This leads to
a simultaneous “parallel processing of diverse legal and
non-legal communicative chains that are operationally
closed to each other” (1996: 130). Herewith, co-evolution
is triggered: the different discourses “do not causally in-
fluence each other, rather they use each other as chocs
exogènes, as perturbations to build up their own internal
structures” (1996: 130).
Teubner’s progress consists in a very precise account of
what, in Ehrlich’s analysis, appears as a rather ambiguous
reciprocal “inspiration” of social and legal norms. Never-
theless, the idea of applying the scheme of structural cou-
pling remains general and elucidates primarily law’s life
under everyday conditions. Since it is designed in firm
closeness to Luhmannian theory, it does not say anything
about the process of law’s emergence. And, for that reason,
the concept is not in a position to catch this very subtle
Derridean moment of différance which is crucial for transi-
tional law. We therefore must ask whether Teubner’s concept
is not in need of a supplément when the issue as to how we
are to apprehend this phenomenon arises. It is exactly here
that I see the chances of a careful reconstruction of Bak’s
concept of SOC within legal theory.
In this respect, we should start by noticing that not every
social norm has the potential to irritate the legal system.
In the reference frame of SOC, this fact is due to the in-
dividual dynamics this social norm owns: a sand grain is
not powerful enough to spark off the collective dynamics of
avalanches. Therefore, only the contingent aggregation of
different social norms is able to generate irritations that
may be perceived in legal communication. Only then, the ho-
listic forces that are needed to instigate the emergence of
law are built up. At the same time, there is another aspect
of the concept of SOC coming into view: To understand how
law emerges, it is not sufficient to focus on the emergence

12
occurrence alone. As Bak pointed out, SOC is a historical
process. The building up of a force capable of setting off
off the holistic dynamics peculiar to avalanches is part of
the process. This reminds legal theory that the issue of
social norms and of their role in the generation of law
should be taken most seriously. Finally, SOC points out
that the holistic dynamics behind catastrophic events, in
our case: the emergence of law, is to be considered as a
link to the gradualism of the three Darwinian factors oper-
ating during times of legal routine. A comprehensive theory
of legal evolution must have an answer to explain what we
may call “legal punctuations”.

IV.
Ubi societas, ibi ius. An old juridical wisdom, yet tremen-
dously difficult to be grasped in all its intricate de-
tails. For transitional law, its meaning can be explained
as follows: If we consider the core issue of legal transi-
tionality, i.e. applying new (retroactive) rules on actions
that where legal under the defeated regime, the first thing
to notice is that the history of the new rules is of para-
mount importance for there can be two kinds of retroactive
law: (1) A law which is the product of a process that com-
plies with the conditions of SOC; in this case, the law in
question has emerged after social norms (group practices,
customs of certain stratas, usages in castes etc.) have
built up to form the holistic dynamics necessary to engen-
der a legal “catastroph”, i.e. a new law (hereafter: retro-
active law I). (2) Another possibility is that the retroac-
tive law has not popped out of the society in which it is
to be applied. Such is the case when the law has been im-
posed on this society, an example being what is frequently
called victor’s justice (hereafter: retroactive law II).
Why should we, in matters of transitional justice, consider
the orgin of retroactive law? A possible line of argument
would be: retroactive law I is law since it has at least
societal legitimacy, even if legal legitimacy is lacking;
conversely, retroactive law II is not law because it pos-
sesses neither societal nor legal legitimacy. Such an argu-
ment would however miss the paradox at the heart of transi-
tional law – although I would fully endorse the outcome of
this line of argument. Yet, the rationale should, in my
view, be totally different: Transitional law intervenes in
very sensitive situation where the memory of dire deeds and
mercy have already coexisted and must furtheron coexist. As

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Derrida has shown for South Africa, regime changes engender
fragile worlds that are delicate to cope with. In such
worlds, law is experiencing a suspension if social norms
against the practices of the old regime have emerged in so-
ciety before the regime’s demise. Under such conditions,
the retroactive law is nothing else than the mirror of what
society, at the time of the now superseded regime, envi-
sioned as normativity. The normativity of the law the
fallen regime passed, does not end by the time this regime
ends; we must assume that this formal normativity has, un-
der the described conditions, ended way before. As SOC
learns, history matters. Law is, in such a situation,
called for to develop a responsiveness in time. This re-
sponsiveness resembles Philippe Nonet’s and Philip Sel-
znick’s concept of responsiveness of law (2001); however,
its dimension is different: neither social, nor material,
but temporal.

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