The Advent of Critical Memory Studies and the Future of Legal Argumentation. (Review Essay)
Hasian, Marouf, Jr., Argumentation and Advocacy
Marouf Hasian Jr. (*)
How should argumentation scholars, who understand the importance of some form of stability in the face of uncertain, probable, and contingent knowledge, think about legal remembrances and amnesias?
Levinson's Written in Stone is a very short book that tackles the question of whether our existing political and legal theories are up to the challenge of deciding which monuments and memorials are "suitable for inclusion" along the avenues, national parks, and public buildings of America (pp. 25-26). Levinson avers that all of our regional memorial landscapes are filled with monuments that remember controversial "Lost Causes," so he wonders if we can have any official civil memory that can establish a "truly coherent national identity" (p. 31). When interest groups ask us to take down Confederate flags or potentially offensive displays of Cavalry victories over Native American resistance, should empowered government officials acquiesce in the erasure of memory?
Rather than going into any detailed discussion of existing propositional logics or traditional analyses of our "rules of law" on memorials, Levinson instead argues that we need to make room for counterspeech and countermemories before we begin destroying works of stone that may seem repellent to some segments of our society. He uses a constitutive approach and analyzes the case for government bans, restrictions, and other types of involvement in the process of memory work, concluding that "judicial caution is especially merited when the challenged practices have become sedimented in historical memory and are simply accepted as a status quo" (p. 105). Levinson explains that because the judiciary has to worry about legitimacy and has to husband its limited resources, "it is foolish for the courts to pick fights that they almost certainly cannot win" (p. 105).
Osiel, in his Mass Atrocity, Collective Memory, and the Law, tackles some very different and yet related questions in asking whether national or international court systems need to be involved in acts of remembrance regarding war criminals and crimes against humanity. For decades, critics of both the Nuremberg and Tokyo tribunals have suggested that perhaps there is a time to forgive and forget, when societies need to avoid bringing back repressed memories. Osiel responds that courts are responsible for helping establish cultural norms, so they need to be able to tell a "better story about where the country should be headed" (p. 66). For example, it is his contention that social justice is served when former collaborators are put on trial for the persecution of Jews during World War II, because these "show trials" provide visual and discursive evidence of a nation's commitments to prevent future atrocities. As far as he is concerned, "the orchestration of these trials" is defensible if the "lessons that are t aught" or the "stories" that are told are "not inherently misguided or morally indefensible" (p. 65). From within this perspective, such trials serve as iconic warnings to authoritarian figures that need reminding of what will happen to them if they violate democratic norms.
Osiel uses what he calls a "discursive model" to guide his analyses of the competing legal postures of the parties that are engaged in war crimes disputation. He extends the work of international scholars who are interested in conflict resolution to make the claim that both the winners and losers of these judicial battles benefit from the process of memory work. For Osiel, the very experience of having a forum for disagreement may mean that confronting various pasts may create a "kind of joint understanding" because "we are united in caring deeply about them [the issues] and what the other thinks of them" (p. 43). The author realizes that these are controversial claims, so he spends a great deal of time addressing the question of whether an individual should be responsible for the illegal acts of others. …