Enter Ghost: Haunted Courts and Haunting Judgments in Transitional Justice
Law & Critique, Vol. 21, pp. 73-92, 2010
20 Pages Posted: 21 Aug 2010
Date Written: January 21, 2010
How can we account for trials in which the judgment speaks not only to and about the defendants and their deeds, but also about injustices from a more distant past? Building on approaches to ghosts and haunting by Jacques Derrida and Avery Gordon, I propose to examine a set of the German post-1990 trials for human rights violations committed in the former East Germany as instances of haunted justice. Here, the courts not only adjudicated the present cases, but also tried to ‘go back and make whole what has been smashed’ (Benjamin 1969) by their own lack of judgment in the failed trials of the Nazi perpetrators. In this instance, the ‘time is out of joint’, and we see the ghosts of the failed trials of Nazi perpetrators standing next to the inheritance of impunity fostered in West German courts, and next to the now present East German perpetrators. What can justice mean in such a complex constellation of injustices? I argue that the ghostly dimension of these cases point to a need for a kind of justice and engagement that can ultimately not be found in courts - yet the courts’ engagement with this ghostly matter is nevertheless important.
Keywords: Haunting, Memory, Ghosts, Time, Transitional Justice, Trials
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