Toward a Self-Reflexive Law? Narrating Torture's Legality in Human Rights Litigation
27 Pages Posted: 17 Aug 2017
Date Written: May 9, 2017
Scholars of Holocaust trials have emphasised law's potentiality as a tool of physical atrocity, and the part played by liberal trials in obscuring this dark side of legality. That responses to mass atrocity should better acknowledge law's contribution to violence is all the more pressing in light of authoritarian regimes' reliance on courts, and the growing and paradoxical obsession with legal form accompanying widespread violence in the neo-liberal era. If trials of atrocity, intensely publicized and reported upon, do not acknowledge the legality of much violence, we - lawyers and members of the public, including potential perpetrators - might fail to recognise mass atrocity when it is before us, cloaked with legal rationality and familiarity. Yet the principal legal mechanisms used to address mass atrocity, namely domestic and international criminal trials as well as truth commissions, do not appear to expose the legality of violence better than the post-WWII criminal trials. This paper explores the possibility of developing what it terms "self-reflexive law": a mass atrocity trial that could expose the part played by law in violence. It does so by exploring a class action lawsuit filed in U.S. courts against Ferdinand Marcos where at trial law's contribution to violence was made very clear for doctrinal, evidentiary and strategic reasons. Part of a collection of essays on "minor historical jurisprudence," this paper offers a distinct version of such jurisprudence as the attempt to derive normative insights from minor practices within law, here oral trial proceedings.
Keywords: international human rights litigation, law and violence
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