In his L'histoire comme champ de bataille Enzo Traverso points out that memory as a socially relevant phenomenon appeared widely after 1989. The fall of the Soviet empire and the ensuing defragmentation of the world led to a situation in which a multitude of recollections, hitherto retained only in private, could enter the public space. Social memory became an element of identity and simultaneously an instrument of politics, increasingly encroaching upon the domain of legal discourse. This happens not only in the form of preambles to various legal acts, in particular constitutions, but also in the form of special state institutions charged with cataloguing the past and making it legally accountable.
According to Maurice Halbwachs, any individual memory functions exclusively in a certain environment and social group. The aim of this Workshop is to explore the relationship between collective memory and legal discourse. In particular, we are interested in the antagonistic, traumatic and political dimension of collective memory. This is because social memory above all records recollections of struggles: wars, revolutions, exclusion, repression, colonization and genocide.
Psychoanalysis teaches us that trauma appears in a moment in which an event cannot be simply included within the symbolic order. This leads to the emergence of a gap which cannot be overcome. Memory can then become an emancipatory tool, a motivation and mobilisation for rebuilding the entire political and social order. However, memory can also be appropriated and become a tool of ideological legitimisation of those in power. Furthermore, especially following a transformation (e.g. from actually existing socialism to democracy and a market economy), society (including the legal community) may develop a tendency to repress the past, either denying completely its legality or dismissing it as a ‘blackout’ or ‘legal black hole’. However, the traumatic past and the involvement of the legal community in it returns in the form of symptoms which, as Žižek characterizes them, are ‘a point of breakdown heterogeneous to a given ideological field and at the same time necessary for that field to achieve its closure, its accomplished form’. The traumatic past of actually existing socialism is, therefore, simultaneously repressed and necessary, impure and inalienable, dirty and indispensable.
Memory is not something constant and immutable. To the contrary, it is subject to reinterpretation and is necessarily linked with the future. As Walter Benjamin pointed out, ‘memory is not an instrument for exploring the past but its theatre. It is the medium of past experience, as the ground is the medium in which dead cities lie interred’. Memory remains within a dialectical relationship with forgetting. The latter should not be confused with repression, that is a purposeful attempt toover time, obscuring the origin of legal institutions, especially their foreign origin as legal transfers or their accidental appearance as a result of a temporary conjecture.
Methodologically relationships between collective memory and legal discourse can be analysed either following a genealogical or structuralist approach. The first perspective focuses on the events which led to the emergence of given legal institutions. What victories do they embody and what failures are disavowed. In other words, how does social memory impact the legal discourse. The second, structuralist perspective, focuses on the productive aspect of law. It describes how the legal discourse, by resorting to appropriate institutions, imposes upon the legal subjects a certain vision of the past, in other words, how does the legal discourse shape memory. The genealogical and structural perspectives are neither disjunctive nor exhaustive. Between them, there is plenty of space for critical legal theory, critical discourse analysis, psychoanalysis, Marxism or history of ideas.
Possible topics that might be explored by workshop participants include, but are not limited to the following:
- coming to terms with memories of conflicts in a transitional justice perspective,state-sponsored institutions dealing with accountability for the past in the former Soviet bloc (‘instititutes of national memory’ and the like)
- lustration, decommunisation and other forms of remembering the authoritarian past
- memory and utopia,
- mythopoesis of law,
- memory as an instrument of identity politics,
- the place of legal history in legal education and legal argumentation,
- idealised visions of the past embodied in legal proxemics and legal rhetoric,
- use of criminal law to impose a certain vision of collective memory, criminalisation of attempts to recount an alternative vision of the past,
- (disappearing) memory of legal transfers which, after some time, begin to be considered as natural and domesticated,
- the role of precedent, especially dated, in legal argumentation
- visions of national past in constitutional preambles and their practical role in constituitonal adjudication,
- admissibility of arguments based on travaux préparatoires and previous legal practice in legal argumentation.
SUBMISSION OF ABSTRACTS
Abstracts of 300 words should be submitted to email@example.com by 15 February 2015. The conveners will inform about the acceptance of abstracts on 1 March 2015. Participants will be requested to submitted working drafts (2,000 – 5,000 words) by 1 May 2015. Following the Workshop, selected participants will be invited to submit full papers to an edited volume which will appear with a respected academic publisher.