Academic journal article Law and Contemporary Problems

Skirmishes on the Temporal Boundaries of States

Academic journal article Law and Contemporary Problems

Skirmishes on the Temporal Boundaries of States

Article excerpt

I INTRODUCTION

Our practical life is for the most part future-oriented, concerned with what to do next. But though the future often presents daunting challenges, the past can raise more intractable ones. When two neighbors disagree about the use of a driveway, then with some ingenuity and goodwill they may be able to reach a mutually advantageous agreement. But if the source of their acrimony is that one neighbor had already slapped the other or hit him over the head, the prospects for an amicable resolution seem dimmer. Future-regarding conflicts appear at least in some respects easier to settle than past-regarding ones. Since the future is open-ended, there may be room for an accommodation that will make the bone of contention disappear. But a past event is fixed, casting a permanent shadow; it cannot be undone. This predicament, of living in the dark shadow of the past, is faced not only by individuals, but by collectivities as well. States in particular must often cope with the "dead weight" of history and address grievances whose origins lie in past mischief. How can they do that? What options are open to them?

In considering these questions, we can draw encouragement as well as guidance from recognizing that we are not in fact helpless in coping with past misdeeds. Although humanity's record in this regard is far from stellar, it is not altogether bleak. Not all disputes linger forever, and many grievances, individual as well as collective, have been successfully resolved. The issues I am addressing here are primarily theoretical, not practical. We are looking not for a new strategy, but for a new account. Given that we do in fact occasionally escape the shadow of the past, we want to better understand how we manage to do so. Greater clarity may, however, have a practical payoff as well, in perhaps increasing our rate of success. The first task, discharged in section II, is accordingly to examine some pervasive conceptions of the problem of the past and common responses to it. As I try to show, the problem has remained largely out of focus, with its difficulty either understated or overstated; consequently, the responses as generally conceived also appear to miss the mark, by either undershooting or overshooting it. Once the problem is in sharper focus, we can address it more effectively. In section III I introduce the notion of a state's temporal boundary and describe how changes in this boundary, analogous to the more familiar changes in territorial borders, can lift the shadow of the past and relieve past-oriented grievances. Section IV connects this conceptual framework to the distinction between history and memory as two different modalities of relating to the past. A proper understanding of a state's relationship to the past, and in particular the possibility of changes in a state's temporal boundaries, offers a way to retain historical knowledge of past wrongs without the rancor and acrimony that mark this knowledge when it assumes the form of collective memory.

II THE SHADOW OF THE PAST

In the case of the two neighbors, as in the case of two neighboring states, the aspiration is to relieve acrimony and induce peace. But the past altercation stands in the way; it casts a dark shadow. For the peacemaking mission to succeed, we must be clearer about the nature of the obstacle presented--the shadow cast--by the past event. What is the significance of the assault, and why does it mar the neighbors' relationship? The starting point is to observe the obvious. Following the attack, bad feelings will linger, perhaps to the point of prompting further hostilities. But bad feelings do not beset the parties as a common cold might; they are not just brute facts. Rather, there is a normative dimension as well. We judge it appropriate that an assault should provoke reactive attitudes, in particular the victim's resentment. (1) But why are negative responses to the misdeed deemed appropriate, and correlatively, what might require their termination? …

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