The Thin Line between Imposition
and Consent: A Critique of Birthright
Membership Regimes and Their Implications
Martha Minow’s inspiring 1999 Gilbane Fund lectures challenge us to face our own tendencies to exclude, marginalize, oppress, and dehumanize certain of our fellow human beings because of their group identity. Rejecting the tendency to turn a blind eye to these most depressing aspects of cultural, religious, ethnic, and national diversity, Minow’s clear and passionate voice challenges us to think creatively about new ways to use law as a means to seek remedies for those who have been harmed, and to prevent, as far as possible, similar recurrences in the future. Minow, in short, encourages us to take responsibility and action for breaking such patterns of hatred. Her Gilbane lectures offer an important and innovative contribution to the recent attempt to develop restorative concepts of justice in place of the traditional retributive understandings of law and conflict resolution.1
But there is another theme that runs through these lectures. Minow calls for an uncompromising search for responses to mass atrocities that can rebuild trust and accountability in the face of past cruelty. This search implicitly directs her argument to the spaces and means through which intergroup hatred and violence are created and maintained. Minow’s lectures describe incidents for which the boundaries that distinguish victims from perpetrators (according to their group membership) are already constituted and clearly marked. What falls beyond the bounds of Minow’s excellent discussion is an exploration of how these boundaries are constructed and sustained over time. After all, an individual cannot be targeted because of ethnic, religious, or national affiliations, if there are no preconceived boundaries and procedures for maintaining such identities.