Table of Contents Introduction ......................................... 464
How Prosecution Assists Collective Memory and How Memory Furthers Social Solidarity ........ 470
Crime, Consensus, and Solidarity ............. 478 B. Solidarity Through Civil Dissensus ........... 489
Legal Shaping of Collective Memory: Six Obstacles .................................... 505
Defendants' rights, National Narrative, and Liberal Memory ............................ 505 B. Losing Perspective, Distorting History ........ 520 C. Legal Judgment As Precedent and Analogy ....... 567 D. Breaking with the Past, Through Guilt and Repentance ................................ 588 E. Constructing Memory with Legal Blueprints? .... 624 F. Making Public Memory, Publicly ............... 648
Collective Memory in the Postwar German Army: A Case Study ............................... 691
Conclusion ............................................ 699 I have spent many nights sleeping in the plazas of Buenos Aires with a bottle of wine, trying to forget. ... I am afraid to be alone with my thoughts.
Argentine Captain Adolfo Scilingo, confessing to having thrown thirty people from a navy helicopter during the "dirty war."(1)
Publicly coming forward to give such testimony is a way of returning to a horrible past that we are trying to forget.
Argentine President Carlos Saul Menem, responding to Scilingo's public confession.(2)
[T]he struggle of man against power is the struggle of memory against forgetting.
All societies have founding myths, explaining where we come from, defining what we stand for.(4) These are often commemorated in the form of "monumental didactics," public recountings of the founders' marking deeds as a national epic. Some societies also have myths of refounding, marking a period of decisive break from their own pasts, celebrating the courage and imagination of those who effected this rupture. Myths of founding and refounding often center on legal proceedings or the drafting of legal documents: the Magna Carta (for Britain),(5) the trial and execution of King Louis XVI (for France),(6) and the Declaration of Independence(7) and the Constitutional Convention (for the United States).(8) "Our country's birthday," reminds Mary Ann Glendon, "commemorates the formal signing of a legal document - a bill of grievances in which rebellious but fussily legalistic colonists recited their complaints, [and] claimed that they had been denied 'the rights of Englishmen.'"(9)
Such legally induced transformations of collective identity are not confined to the distant past. In Australia, the white population has recently come to refocus its national identity around a "discovery" rehabilitation of the country's aboriginal population.(10) At the same time, aborigines themselves have increasingly come to refocus their relations with the white majority population around several highly successful legal interactions with it: a well-publicized lawsuit vindicating indigenous claims to traditional lands and a law consolidating these claims.(11) Both legal events have, in turn, come to be celebrated in indigenous ceremony and popular song.(12)
In short, acts that assert and recognize legal rights have often become a focal point for the collective memory of whole nations. Secular rituals of commemoration consolidate such shared memories with increasing deliberateness and sophistication.(13) These events are both "real" and "staged," to the point of problematizing the distinction between true and false representations of reality.(14) In this way, law-related activities can and do contribute to the kind of social solidarity that is enhanced by shared historical memory. In the last half century, criminal law has increasingly been used in several societies with a view to teaching a particular interpretation of the country's history, one expected to have a salubrious impact on its solidarity.
Many have thought, in particular, that the best way to prevent recurrence of genocide, and other forms of state-sponsored mass brutality, is to cultivate a shared and enduring memory of its horrors - and to employ the law self-consciously toward this end. To do this effectively has increasingly been recognized to require some measure of son et lumiere, smoke and mirrors, that is, some self-conscious dramaturgy by prosecutors and judges, I contend. For instance, western Allies in postwar war crimes trials deliberately strove "to dramatize the implacable contradiction between the methods of totalitarianism and the ways of civilized humanity through a worldwide demonstration of fair judicial procedure."(15)
This Article examines six recurring problems that have arisen from efforts to employ criminal prosecution to influence a nation's collective memory of state-sponsored mass murder.(16) Some of these suggest the task's impossibility; others, its undesirability. First, such efforts can easily sacrifice the rights of defendants on the altar of social solidarity. Second, they can unwittingly distort historical understanding of the nation's recent past. Third, they may foster delusions of purity and grandeur by encouraging faulty analogies between past and future controversies, readings of the precedent that are often too broad, sometimes too narrow.
Fourth, they may fail by requiring more extensive admissions of guilt, and more repentance, than most nations are prepared to undertake; this is because efforts at employing law to instill shared memories sometimes require substantial segments of a society to accept responsibility for colossal wrongs and to break completely with cherished aspects of its past. Fifth, legal efforts to influence collective memory may fail because such memory - almost by nature - arises only incidentally; it cannot be constructed intentionally. Sixth, even if collective memory can be created deliberately, perhaps it can be done only dishonestly, that is, by concealing this very deliberateness from the intended audience.
These obstacles establish the moral and empirical limits within which any liberal account of law's contribution to collective memory must maneuver.(17) I discuss each obstacle in turn, drawing on the now considerable experiences of Germany, Japan, France, Israel, and Argentina.(18) My primary aim is to clarify the nature of these six problems and to illustrate the ways in which they arise. In hopes of fostering their wider recognition and consideration, I offer only the most confessedly provisional suggestions for their resolution.
Administrative massacre, as I shall use the term, entails large-scale violation of basic human rights to life and liberty by the central state in a systematic and organized fashion, often against its own citizens, generally in a climate of war - civil or international, real or imagined. Mass murder is the most extreme of a broader class of harms inflicted during such episodes; these episodes routinely involve massive numbers of other war crimes and crimes against humanity, such as enslavement of labor (for example, of Korean "comfort women" by the Japanese army and of jews by the Nazis). My premise is that state criminality of this nature, on this scale, poses special problems - in its immediate aftermath - for new democratic rulers seeking to reconstruct some measure of trust, social solidarity, and collective memory of the recent past. I assess the extent to which criminal law may effectively address these problems.
These problems take various shape in differing circumstances. For this reason, occasional forays are necessary into a wide range of historical experience and efforts by social theorists, of competing persuasions, to make sense of it. The strengths and weaknesses of liberal philosophy, in guiding the law's response to administrative massacre and in influencing memory of it, are a central concern in this regard. The criminal law is widely and correctly thought to embody assumptions about human nature and society that are primarily liberal.(19) It follows that a sophisticated critique of criminal law, of its response to a given problem, issues very quickly into an indictment of liberalism itself. For this reason, the most influential recent criticisms of liberalism, by communitarians and postmodernists, will recurrently arise; my aim will be to see how much light such critics can shed on the law's limits and possibilities in this area.
The qualified defense of liberal law that ultimately emerges, of its conceptual resources for coping with these six problems, operates by way of a comparative history, not a conceptual analysis or metatheoretical speculation. I examine the historical experience of administrative massacre in light of what alternative theories have to say about the law's capacity to grapple with it. Conversely, I assess the theories themselves in terms of the practical successes and failures revealed by the comparative history of efforts to bring the perpetrators of administrative massacre to justice.(20)
But first it is necessary to ask: What is at stake here? How would the obstacles just mentioned, if insurmountable, limit the capacity of liberal law to respond adequately to state-sponsored mass brutality? What would be lost if these obstacles prevented the law from effectively fostering a shared memory of such events? How might the criminal law, by cultivating administrative massacre through prosecution of its perpetrators, contribute significantly to social solidarity? For that matter, what is the proper place of such solidarity - law-induced or otherwise - within a liberal society?
How Prosecution Assists Collective Memory and
How Memory Furthers Social Solidarity
Kundera's epigram,(21) like the work of recent historians, suggests that in political struggle we often "use memory as a tool of power."(22) The link between power and storytelling is hard-wired at the level of language, for the words "author" and "authority" have...