Theorizing Law and Historical Memory: Denialism and the Pre-Conditions of Human Rights
16 Pages Posted: 14 Dec 2018
Date Written: December 5, 2018
States’ efforts to mould historical memory have long attracted scholarly attention. In recent years, however, a focus on the role of legal norms and mechanisms as tools in those efforts has steadily sharpened. Most scholarship examines that role through particularist analyses, narrowing a specific period of history down to some particular state or region. As such studies accumulate, however, more general patterns emerge. This article explores not any such particular situation, but instead pursues a project of theorising the discipline of law and historical memory as a whole. One conspicuously shared element, particularly within the framework of modern states, is that the histories examined directly involve or ultimately trace back to human rights abuses. As a general matter, then, states’ efforts to deny past or ongoing conduct certainly pose a pragmatic obstacle by obstructing investigations into abuses. Yet it is argued in this article that the relationship between denialism and human rights is (in a Kantian-Habermasian sense) transcendental: the very possibility for the existence of a human rights system presupposes a sphere for open, public scrutiny of state conduct. That condition is not ‘all or nothing’: the extent to which a human rights system becomes possible depends upon the extent of that sphere of public discourse. Unsurprisingly, states with the best human rights records also maintain the types of open public spheres which most reliably ensue against state denials of human rights violations, and thereby provide models of best practice.
Keywords: democracy, historical denialism, freedom of expression, human rights, law and history
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