Law and Historical Memory: Theorising the Discipline

Western history is largely a history of writing its own history. From Thucydides, Livy and Tacitus to our own time, most of what we call ‘History’ consists of ‘histories’ – events situated in time and place to instruct contemporaries and posterity. With the Enlightenment, however, questions start to arise as to whether ‘History’ is something more. Amidst what are by that time innumerable ‘histories’, figures like Kant, Hegel, Marx, and Nietzsche ask about inherent patterns and therefore underlying meanings to History. Is History more than just ‘one damn thing after another’, more than a never-ending cascade of disparate narrations? Does anything about History shed light on the character of ‘the human condition’ (if there is such a thing)? To be sure, writers like Herder and Savigny would cast doubt on that ‘Big History’ enterprise, which, as such a roster of luminaries suggests, had become a Teutonic obsession, given Germany’s post-Enlightenment anxieties.

With the advent of post-colonial theory, ‘Big History’ soon looked like little more than crude generalisations about Europe – crudely projected onto all humanity. Yet, far from dismantling speculation about ‘History’, those scepticisms have re-invigorated it. In calling for greater nuance, they render all the more compelling questions about what we mean by ‘history’ and why we write and debate it.

Law as a normative system

The post-Cold War world has witnessed a flurry of scholarship about law and historical memory, that is, about states’ recourse to legal means of shaping public consciousness about the past. There is nothing new about the subject matter as such. Historians have long observed how governments propagandise about the past, for example, by glorifying founding fathers and battlefield scenes – or indeed by censoring voices that dissent from official narratives ...

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