Andrews, Penelope

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digitalcommons.nyls.eduFaculty Scholarship Other Publications2010Book Review: Legal Institutions and CollectiveMemories, Edited By Susanne KarstedtPenelope AndrewsNew York Law School, penelope.andrews@nyls.eduFollow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubsThis Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion inOther Publications by an authorized administrator of DigitalCommons@NYLS.Recommended CitationAndrews, Penelope, "Book Review: Legal Institutions and Collective Memories, Edited By Susanne Karstedt" (2010). OtherPublications. 456.https://digitalcommons.nyls.edu/fac_other_pubs/456357Book ReviewLEGAL INSTITUTIONS AND COLLECTIVE MEMORIES, editedby Susanne Karstedt'PENELOPE (PENNY) ANDREWS 2CERTAIN FUNDAMENTAL QUESTIONS have recently surfaced in the wake of sys-temic brutality and extreme atrocities that constitute war crimes, crimes againsthumanity, and gross violations of human rights. What is the most appropriatemethod for a society to punish the perpetrators? How does a society pay tributeto and provide reparations for individual victims? How does a society heal thecollective trauma and devastation caused by brutality and atrocities? What are the.most effective steps to be taken to ensure that the past is not repeated? The role oflegal institutions and legal processes and their engagement with and entanglementof individual and collective memories raise further difficult and complex questions.These questions have become staples for advocates and scholars in thehuman rights community, both at the local and international level, and severalimpressive texts dedicated to these issues have been produced.' Legal Institutionsand Collective Memories, a welcome addition to the literature, contributes com-prehensive historical, sociological, and legal perspectives to this important dia-logue. Dedicated as a tribute to Maurice Halbwachs (1877-1945) and his coiningof the concept of "collective memory,"' Legal Institutions serves to explore thisnotion in the wake of several experiments to address and redress war crimes,1. (Oxford: Hart, 2009) 409 pages [Karstedt, Legal Institutions]. Professor Susanne Karstedt is anoted European criminologist who is based at Leeds University in the United Kingdom. Herareas of research include genocide and the prosecution of Nazi war criminals.2. Associate Dean for Academic Affairs, City University of New York School of Law.3. Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick: Transaction,1997); Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000); andPriscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York:Routledge, 2001).4. Susanne Karstedt, "Introduction: The Legacy of Maurice Halbwachs" [Karstedt, "MauriceHalbwachs"] in Karstedt, Legal Institutions, supra note 1, 1 at 2.358 (2010) 48 OSGOODE HALL LAW JOURNALcrimes against humanity, and gross violations of human rights. These experimentsinclude prosecutions (for example, at Nuremburg and the international criminaltribunals relating to the former Yugoslavia and Rwanda), truth commissions (asin Chile, Guatemala, and South Africa), lustration (as in the former East Ger-many), and other hybrid mechanisms (such as the Gachaca courts in Rwanda).'The contributors represent a most impressive array of scholars, who haveeither shaped many of the debates surrounding these issues or made notable con-tributions to the discourse. They continue that tradition in Legal Institutions, andthis biographical aspect of the contributors renders the book especially signifi-cant. The South African Truth and Reconciliation Commission (TRC) loomslarge in the text: at least three chapters are dedicated entirely to it, while othersreference it throughout.The historical, international, and comparative focus provides a comprehen-sive conceptual framework where the issues raised in the book are richly analyzed.The historical period begins with the end of World War I and spans the decadessince. The geographical sweep includes Australia, the former Czechoslovakia,Germany, Poland, Latin America, South Africa, and South Korea.The book consists of six thematic parts that explore the concept of collec-tive and collected memories in their many configurations. Part one exploresthe relationship between truth and justice, while providing contrasting waysand analyses of dealing with the past. Part two explores divisions, contestations,and silences about memory, and part three examines the politics of culture andidentity that shape both memory and law's responses. The issue of rescuing andrestoring rights in the wake of past abuse and horror and transitional periods isinvestigated in part four, while part five explores bureaucratic details, includingbiographies. Finally, part six delves into Germany's Nazi past and attempts tolocate collective memories in the context of an evolving political culture. Thethematic choice is interesting because the editor does not proceed chronologi-cally-as texts of this kind tend to-but instead utilizes a conceptual frameworkthat allows for an organic synthesis between concept and chronology.Neither the editor nor the individual authors are too concerned with chroni-cling when events happened, although they certainly do so. Rather, their aimthroughout the text is to explore the methodology and epistemology of how5. See e.g. Shale Horowitz & Albrecht Schnabel, eds., Human Rights and Societies in Transition:Causes, Consequences, Responses (Tokyo: United Nations University Press, 2004); BernhardSchlink, Guilt about the Past (Toronto: House of Anansi Press, 2009).BOOK REVIEW 359collective memories "shape and permeate law,"' and the cultural and identityquestions that influence this uneasy yet vital relationship.Part one, entitled "'The Truth and Nothing but the Truth': Truth and Jus-tice between the Past and the Present," opens with chapters by Stanley Cohenand Juan Mendez, where they explore the issue of "truth" and its relation to theexcavation of facts.' These eminent scholars take contrasting approaches to thecriminal justice model as a means of unearthing truth. Cohen sees this model aswanting, and instead explores several types of truths, including factual or foren-sic truth, personal and narrative truth, social truth, and healing and restorativetruth. He concludes that because only factual or forensic truth has any legitimacyin the criminal justice system, recovering the truth is only a tentative endeavour.Mendez, on the other hand, interprets the criminal justice model as superior inunpeeling the layers of truth, thereby contributing to a shared collective mem-ory in countries that have chosen this route. He sees a fundamental right to thetruth, and its vital role in ending impunity.Part two, entitled "Divided Memories, Contested Truths, Silenced Voices,"contains four chapters, three of which focus on the TRC. These chapters exploreattempts to forge a national narrative from a legacy of divided memories, strate-gic renderings of truth, and individual and collective silences. South Africa, as ahistorically and currently divided society, illustrates the problem of utilizinglegal processes to shape collective memories in the wake of trauma and abuse.Emilios Christodoulidis and Scott Veitch examine the way that the TRC hasexplored South Africa's past, with the TRC always mindful of how the uncov-ering of this past shapes the future and the reconciled nation's narrative abouttruth and reconciliation.' The TRC provided only a limited window throughwhich South Africans could examine their past.Heribert Adam also examines the work of the TRC by locating his analysiswithin two kinds of memory: progressive memory and retrogressive memory.!6. Karstedt, "Maurice Halbwachs," supra note 4 at 3.7. Stanley Cohen, "Unspeakable Memories and Commensurable Laws" in Karstedt, LegalInstitutions, supra note 1, 27 at 27; Juan E. Mendez, "An Emerging 'Right to Truth': Latin-American Contributions" in Karstedt, Legal Institutions, 39.8. Emilios Christodoulidis & Scott Veitch, "Reflections on Law and Memory" in Karstedt, LegalInstitutions, ibid, 63.9. Heribert Adam, "Divided Memories: How Emerging Democracies Deal with the Crimes ofPrevious Regimes" in Karstedt, Legal Institutions, ibid, 79.360 120101 48 OSGOODE HALL LAW JOURNALHe interprets progressive memory as fundamentally positive, an inquiry "intothe causes of past suffering with a view to preventing a future recurrence"oamounting to "political education in the best sense."" In contrast, retrogressivememory "locks people into vicious circles of past conflicts."12 He laments themissed opportunities of the TRC because of its politically skewed composition,its particular theological perspectives, and its individualized focus on gross vio-lations of human rights. A combination of these missed opportunities, and theTRC's highly orchestrated ritual of truth telling and reconciliation, therebypermitted the exoneration of beneficiaries of apartheid.Gunnar Theissen's highly empirical piece examines how the TRC negoti-ated the divided memories that were a feature of post-apartheid South Africa,and what the TRC's contributions may have been to narrow those divisions.' 3He concludes that the processes of the TRC, and its attempt to tell the storiesof victims, failed to heal those divisions, and may in fact have reified them. Inthe concluding chapter of this section, Young-Hee Shim turns her gaze to the"comfort women" of Korea, exploring the role of shame and silences on the onehand, and public acknowledgement and empowerment on the other."In part three, entitled "Law, Memory and the Politics of Culture and Iden-tity," all three authors explore the contested meanings of identity shaped byhistorical narratives embedded within deeply divided social memories. HeinzSteinert's opening chapter references the "memory and heritage industry,"'" anadjunct of the "[c]ulture industry,"" to illustrate the commodification of the pastas well as individual and collective memories in popular culture. Kathy Lasterargues that despite its transformative potential, the landmark Australian High10. Ibid. at 80.11. Ibid.12. Ibid.13. Gunnar Theissen, "Common Past, Divided Truth: The Truth and ReconciliationCommission in South African Public Opinion" in Karstedt, Legal Institutions, ibid., 101.14. Young-Hee Shim, "From Silence to Testimony: The Role of Legal Institutions in theRestoration of the Collective Memories of Korean 'Comfort Women"' in Karstedt, LegalInstitutions, ibid., 135. The term "comfort women" refers to Korean women who werekidnapped and raped by Japanese soldiers during World War II.15. Heinz Steinert, "Negotiating the Past: Culture Industry and the Law" in Karstedt, LegalInstitutions, ibid., 161 at 162.16. IbidBOOK REVIEW 361Court decision confirming indigenous land rights had limited impact on thecollective identity of Australian society, despite the Court's rejection of the his-torical narrative of terra nullius embedded in Australian legal memory." Turn-ing his attention to legal liberties and his concept of "experienced authenticity,".Arthur Stinchcombe explores the fluid interaction of individual identity andinstitutional structure to argue that this engagement generates a shared vision ofa collective future.Part four, entitled "Creating and Restituting Rights After Abusive Regimes:Bridges Between the Past and the Future," pays close attention to the possibili-ties and limitations of constitutional and other legal mechanisms to transform apreviously divided society into one that is integrated and democratic. Kim LaneScheppele and Graiyna Sk4pska, in their thoughtful chapters, explore the role oflaw and legal institutions in transitional societies." Scheppele examines the centralplace of constitutions and constitutional courts in transitional political arrange-ments as bridges from repressive pasts and their collective memories to new socie-ties without the abusive excesses of the past. Sk4pska focuses on attempts at therestitution of property rights in Central and Eastern Europe, and the cultural andhistorical roots of conceptions of property rooted in collective memories.The next part, entitled "The Stores of Memory: Files, Individual Biographiesand Collective Memories," examines the bureaucratic ordering and cataloguingof individual and collective memories in files and biographies. Carol Heimer andStinchcombe examine the metamorphosis of individual biographies and officialdossiers into the evidentiary basis for court cases, and the selective eliminationof individual recollection for the purpose of a more consistent official narra-tive.20 Jifina Siklov: interrogates her own biography to outline the excess ofofficial monitoring and invasion, and how individuals construct their individual17. Kathy Laster, "Australia's Sorry Judges: Nationalism and Collective Memory" in Karstedt,Legal Institutions, ibid., 187.18. Arthur L. Stinchcombe, "Experienced Authenticity of Culture and Legal Liberties" inKarstedt, Legal Institutions, ibid., 217.19. Kim Lane Scheppele, "Constitutional Interpretation after Regimes of Horror" in Karstedt,Legal Institutions, ibid, 233; Graiyna Skqpska, "Paying for Past Injustices and Creating NewOnes: On Property Rights Restitution in Poland as an Element of the UnfinishedTransformation" in Karstedt, Legal Institutions, 259.20. Carol A. Heimer & Arthur L. Stinchcombe, "Biographies: Legal Cases and PoliticalTransitions" in Karstedt, Legal Institutions, ibid., 283.362 [20101 48 OSGOODE HALL LAW JOURNALbiographies to conform to the standardized and autocratic expectations ofthose who wield control and censorship. 21 Roger Engelmann examines theubiquity of the Stasi in Eastern Germany and their impact on the individualand collective.22 Finally, Andrzej Zybertowicz argues that despite this historyof repression and authoritarianism, the transition period becomes one of offi-cial denial and obfuscation.23The concluding part, "Failing Memory: The Law and its Past," examinesthe "blind spot[s]""2 of legal institutions in coming to terms with the past. Kon-stanze Plett illustrates the cumulative effect that silencing has had on the wideracademic culture.25 She uses the biography of a female German scholar, whomigrated to the United States in the 1930s and who refused to return even afterthe war, to demonstrate her marginalization and complete obliteration from thecollective memory of the male-dominated profession. In the concluding chap-ter, Ruth Herz examines the treatment of young ethnic offenders in the juvenilecourts in Germany, and the failure of post-unification Germany to come to termswith its Nazi and communist past.Minor criticisms can be made of the organization of the book, particularlythe fact that certain chapters were included in one section and not another.For example, Young-Hee Shim's chapter on comfort women might have beenbetter suited for inclusion in part six, where her analysis comports more withissues around the contested nature of memories long hidden and silenced. Inaddition, although the chapters are for the most part solid and concise, some ofthem tend to be somewhat abstract. Regardless, these minor criticisms pale incomparison to the enormous contribution this text makes to the literature onlegal institutions and collective memories. Most of the texts that focus on these21. Jifina Siklovi, "Biographies and Risumbs as Part of Life under Communist Rule in theCzech Republic" in Karstedt, Legal Institutions, ibid., 317.22. Roger Engelmann, "The 'Stasi Records', the Public and Collective Memories: TheInspection of Personal Records" in Karstedt, Legal Institutions, ibid., 329.23. Andrzej Zybertowicz, "The Art of Forgetting: The Communist Police -State as a Non-reality"in Karstedt, Legal Institutions, ibid., 341.24. Karstedt, "Maurice Halbwachs," supra note 4 at 22.25. Konstanze Plett, "The Loss of Early Women Lawyers from Collective Memory in Germany:A Memoir of Magdalene Schoch" in Karstedt, Legal Institutions, supra note 1, 355.26. Ruth G. Herz, "Putting the Nazi Past Behind: Juvenile Justice and Germany's ChangingPolitical Culture" in Karstedt, Legal Institutions, ibid., 373.BOOK REVIEW 363matters tend to locate their analysis in divided disciplines-that is, either in law,psychology, sociology, or elsewhere. The comparative and interdisciplinary ap-proach of Legal Institutions is one of its great strengths, and it will be of enor-mous benefit to legal and other scholars in the field. This reviewer is unawareof another text that explores the issue of legal institutions and collectivememories with such depth and intellectual creativity, and as comprehensively,as Legal Institutions.

Book Review: Legal Institutions and Collective Memories, Edited By Susanne Karstedt

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Book Review: Legal Institutions and Collective Memories, Edited By Susanne Karstedt

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