The Constitution of History and Memory

Almost twenty years ago, the historian Pierre Nora wrote about the growing number of “lieux de memoire” - museums, monuments, and memorials - where post-modern society situates public memory of traumatic or triumphant events. Yet he devoted little sustained attention to what may be the quintessential “lieu de memoire” today, the courtroom or truth commission hearing room. Traces of our contemporary obsession with the encounter among law, history and memory are everywhere. And so are lawyers: writing new constitutions for new republics, staffing international tribunals for war criminals, taking testimonies for truth commissions. Yet much of the enthusiasm for legal strategies to “come to terms with” the past draws on individual psychoanalytic metaphors for collective “traumas,” and relatively simplistic theories of historical practice, law, and narrative - whether that personal narrative will humanize law, or that justice will be secured by the search for historical truth. This essay discusses efforts by scholars of law and the humanities to address law’s relationship to history and collective memory, often through the lens of literature or literary theory. It draws together the theoretically sophisticated work on trials of twentieth-century mass atrocities - the Holocaust and South African apartheid in particular - with the relatively under-theorized literature on the memory of slavery and the slave trade. And it puts the new law and humanities scholarship in the context of the much greater body of work by sociologists, anthropologists, political scientists, and historians on collective memory, as well as the work of legal scholars on the role of trials and truth commissions in undoing historical injustice.