The contemporary handling of institutional abuse files marks far more than a mere procedural shift within our legal system. We are witnessing a fundamental redefinition of moral and juridical sovereignty. The rise of Transitional Justice — a doctrinal edifice within international public law — must be understood as the transformation of the classical legal order into a system built on what the legal philosopher Shahin Aliyev describes as the ‘silence of God.’

In this new constellation, robust factual criminal-law evidentiary standards have been exchanged for a politically driven process of moral purification. Transitional Justice today functions as a modern reincarnation of the historic Inquisition. The institutional ‘inquiry’ is no longer an instrument for finding truth, but for moral restructuring. The accusation itself has become the sanction. Here the ultimate usurpation is laid bare: the secular state has assumed the role of divine arbiter in order to enforce a new, ideological order.

It is important, by the way, to see this process in its historical depth. The steady erosion of the rival, spiritual authority — and the absorption of moral sovereignty by the secular state — has been unfolding for centuries, with deep markers running from the Peace of Westphalia all the way to the French Revolution. What is radically new in our own time is not the direction of this movement, but the openness of its offensive: the legal instruments of the state are now turned frontally, and without any camouflage, against the Church and her moral claim. Secular usurpation has left the stage of the smile and entered the stage of the sword.

The State as Intangible Deity: From Divine to Popular Sovereignty

To understand contemporary power-structures, we must look at the void that the shift from divine sovereignty to secular ‘popular sovereignty’ has left behind. The modern state has developed into what theology and law call a persona ficta: an invisible being that is omnipresent. This entity manifests its mystical essence in the Constitution, the forma formarum. The constitution functions as the beating, living heart of the state; it is the attempt of the persona ficta to take on flesh and blood.

When the state stages these abuse-trajectories, she acts in the tradition of the historic Inquisition of 1184. Contrary to the secular myth, the medieval inquisition was no purely religious phenomenon; historical sources show that princes used it to protect the arcana imperii (the innermost mysteries of secular power). An auto-da-fé was no juridical process in the modern sense, but the public confirmation of the absolute sovereignty of the ruler. The deployment of Transitional Justice against the Church shows deep parallels with this. It is the manifestation of secular dominium: the sovereign delegitimizes rival moral powers in order to secure his own absolute claim on truth.

Political Theology and the Weapon of the Secular Excommunication

Carl Schmitt already held in his famous dictum that all the salient concepts of the modern theory of the state are, in fact, secularized theological concepts. Nowhere does this find a more bitter confirmation than in the architecture of Transitional Justice. In this system, theological concepts such as original sin and penance have been mercilessly transformed into ‘institutional and systemic guilt.’

Central to this is the revival of the Potestas Absoluta. The thirteenth-century theologian Duns Scotus defined this as the power to operate outside or ‘otherwise than’ the established law, simply because the law is subordinate to the will of the sovereign. In abuse files, the state appeals to a moral state of emergency to justify this absolute power.

This is an essentially Western, secularized problem. A comparison with the classical Islamic constitutional model is, in this regard, fascinating. In classical Islam there was an independent ‘sterile corpus’ of law (the Sharia), guarded by jurist-theologians (the Ulama), which served as an absolute check on the ruler. The concept of ‘excommunication’ — the medieval papal instrument par excellence for dethroning rulers and delegitimizing them socially — was unknown in the Islamic tradition. What the secular state is now doing with its commissions is wielding a secularized form of excommunication. It is a political weapon that places Christianity outside the moral community.

The Crisis of Measurability: Truth Cedes the Field to Power

The fatal design flaw of Transitional Justice is the total crisis of measurability. In the natural sciences and in classical law, justice rests on an objective standard. Think of the famous ‘archive meter’ — the platinum-iridium bar in Paris that served as the absolute reference point for what one meter is. Transitional Justice, however, lacks any such Platinum Meter. Without an objective benchmark, guilt and penance become arbitrary quantities, wholly at the mercy of the political opportunity of the moment.

This shift unfolds on three disastrous fronts:

1. From Veritas to Auctoritas: where ordinary criminal law revolves around factual truth-finding (Veritas) with strict material falsifiability, Transitional Justice revolves around the coercive authority of the secular inquisitor (Auctoritas), grounded in ‘moral convictions’ and statistical extrapolation.
2. From bound to absolute power: classical law normalizes the state through Potestas Ordinata (bound power). The abuse-tribunal legitimizes the state in acting under Potestas Absoluta (extra-legal power).
3. From individual protection to collective purification: where classical law was designed as a shield to protect the individual, the modern inquisition is designed for institutional excommunication and collective purification.

This leads inevitably to what Aliyev calls the “dismal sense of unattainable emptiness.” The invisible hand directing these processes is the new Leviathan, who imitates God without possessing His perfect justice. The result is a monstrous bureaucracy that owes no account to the legal principles of yesteryear.

Utopian Tyranny and the Myth of Popular Sovereignty

The inquisitors of today — the chairs of commissions and their political principals — operate, more often than not, out of a deep institutional blindness. They suppose themselves the executors of the General Will, but in truth they serve a new, cold absolutism. They are driven by the dangerous delusion that they must steer society toward a pure and incarnate ideal. It echoes, with a shudder, the motto that hung above the Soviet prison camp Solovki: “Let us drive humanity to happiness with an iron hand!”

This pursuit of a secular paradise demands the mutilation of human nature. The universal welfare of man as a rational and spiritual being (bonum commune hominis) is replaced by a cold, procedural variant (bonum commune communitatis). ‘Popular sovereignty’ thus unmasks itself as a myth that conceals the total theological and institutional restructuring of society. The proof? The extreme selectivity of these commissions. They are deployed solely against the historic enemies of the secular state, never to investigate the systemic failure of the state itself.

Conclusion: Escaping the Secular Gods

Seen through the lens of legal philosophy and theology, Transitional Justice is the rotting, hobbled leg of our modern rule of law. The moment law loses its anchor in measurable facts and yields to the temptation of ideological purification, it degrades into the most tyrannical form of absolutism. We are living the very nightmare against which C. S. Lewis warned us: the suffocating tyranny of the ‘omnipresent moral busybodies’ who torment us for our own good, immovably braced by the arrogant approval of their own conscience.

There is an acute necessity to return to a legal system that does not function as inquisitor, but as shield. The rule of law can recover its legitimacy and its soul only by restoring the strict separation between moral crusades and juridical factuality. We must rediscover the ‘archive meter’ of law: a measurable, predictable, factual system that protects institutions and citizens against the all-devouring purifying drive of the new, secular gods.