Mass Atrocity, Collective Memory, And The Law

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Trials of those responsible for large-scale state brutality have captured public imagination in several countries. Prosecutors and judges in such cases, says Osiel, rightly aim to shape collective memory. They can do so hi ways successful as public spectacle and consistent with liberal legality. In defending this interpretation, he examines the Nuremburg and Tokyo trials, the Eicnmann prosecution, and more recent trials in Argentina and France. Such trials can never summon up a "collective conscience" of moral principles shared by all, he argues. But they can nonetheless contribute to a little-noticed kind of social solidarity.

To this end, writes Osiel, we should pay closer attention to the way an experience of administrative massacre is framed within the conventions of competing theatrical genres. Defense counsel will tell the story as a tragedy, while prosecutors will present it as a morality play. The judicial task at such moments is to employ the law to recast the courtroom drama in terms of a "theater of ideas," which engages large questions of collective memory and even national identity. Osiel asserts that principles of liberal morality can be most effectively inculcated in a society traumatized by fratricide when proceedings are conducted in this fashion.

The approach Osiel advocates requires courts to confront questions of historical interpretation and moral pedagogy generally regarded as beyond their professional competence. It also raises objections that defendants' rights will be sacrificed, historical understanding distorted, and that the law cannot willfully influence collective memory, at least not when lawyers acknowledge this aim. Osiel responds to all these objections, and others. Lawyers, judges, sociologists, historians, and political theorists will find this a compelling contribution to debates on the meaning and consequences of genocide.

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Editorial Reviews

From the Publisher
“Oseil (Univ. of Iowa, law) applies sociology theory in a reasoned argument for criminal prosecutions involving the judiciary in broad consideration of evidence about administrative massacre, evidence far beyond the facts required to establish individual guilt… Osiel's provocative, thoughtful work draws on a wide range of theory that challenges prevailing conceptions of the law's limits. His unique analysis should inform the debate over impunity and the relative merits of truth commissions versus criminal tribunals to expose gross human rights violations. His sophisticated approach should interest advanced readers, upper-division undergraduate and above.” —H. Tolley, Choice "[T]here has emerged a tremendous amount of literature examining various battlefields of memory. Osiel has added an important and revealing work to this field." Edward T. Linenthal, Shofar “A remarkable book. . . . Osiel’s knowledge is immense, his grasp of theories of history and collective memory very sophisticated, his approach subtle and fair-minded, his style powerful and clear. This is the best book ever written about how states construct collective memories of large-scale state brutality, about how law can be used to promote understanding of historical injustices so as to teach valuable lessons to future generations, and finally about the perils and ironies inherent in such uses of law.” —Robert W. Gordon, Johnston Professor of Law, Yale Law School “Mass Atrocity, Collective Memory, and the Law is a remarkable and remarkably important book. [It draws] out the legal implications of historical and contemporary responses to mass atrocity inflicted by a state on its population. Osiel challenges us to rethink what law is and can be” —Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College “Can criminal trials of the alleged perpetrators help heal societies wounded by terrible massacres and atrocities? In this splendid, clear-eyed inquiry, Mark Osiel cautiously answers in the affirmative. Well aware of how this process can go wrong, and how it has gone wrong in specific cases, the author nevertheless encourages those who seek justice and refuse to abandon the rule of law.” —Michael R. Marrus, University of Toronto “Mark Osiel reminds us that inquests and trials for past atrocities are acts of collective memory. Osiel writes with the precision of a lawyer, the insight of a sociologist, and above all the passion of a humanitarian.” —David Luban, Morton and Sophie Macht Professor of Law, University of Maryland “Drawing upon history, social theory, and legal philosophy, Osiel demonstrates how the political trial can help reconstruct a liberal community after devastating political violence. This is a timely and persuasive work based on a great range of recent cases.” —Charles S. Maier, Director of the Center for European Studies, Harvard University “[N]o one before Osiel has made such a successful attempt to compare several ground-breaking trials through which very different societies have tried to come to grips with the legacies of man-made tragedies.” —Juan E. Méndez, Executive Director, Inter-American Institute of Human Rights
Michelle Donaldson Deardorff
Attempts at deliberately constructing a society's collective memory have recently animated discussions in such diverse disciplines as experimental psychology, public history, and law. Mark Osiel's MASS ATROCITY, COLLECTIVE MEMORY AND THE LAW focuses upon the deliberate use of criminal trials in the transition to a liberal democracy from an autocratic state that has sponsored massive human atrocities. While he recognizes the detailed scholarship on the deterrence and retribution functions of criminal justice systems, Osiel is interested in the role of the criminal justice system in social engineering. He finds that public criminal trials "when effective as public spectacle, stimulate public discussion in ways that foster the liberal virtues of toleration, moderation, and civil respect" (p. 2). MASS ATROCITY intends to show how these virtues can be achieved while responding to both practical obstacles and ethical objections to orchestrating prosecutions of bureaucratic mass atrocities. While Osiel relies upon a wide variety of contemporary and historical examples of such trials, his stated purpose is to focus on the Buenos Aires trials of military officers. According to Osiel, the predominant purpose of such trials is the development of a coherent collective memory of a people, a way of historically, legally, and societally examining a painful history and using it to create a more open, classically liberal society. More specifically, a form of societal solidarity must emerge from the trials. He describes two forms of such solidarity--mechanical and discursive. Mechanical solidarity assumes that a common history of the country and shared values can result from a public criminal trial, via an unified interpretation of these recent events. Osiel argues that criminal law, with its basis of competing narratives, can only provide mechanical solidarity "when virtually all members of society share a particular view of justice" (p. 36). In light of the societal emotions that are inherently residual from a mass atrocity, this form of solidarity is an unrealistic objective. Consequently, the goals of such trials should be discursive solidarity, where disagreements on outcomes, punishments, and guilt will remain but where acceptance of the legal and political processes underscores the entire event. "In this spirit, opposing parties greet each other not with a fraternal embrace, nor even a business-like handshake, but rather a nod of mutual agreement, initially grudging, that they will occupy the same society-- reluctantly but inescapably--for the foreseeable future" (p. 43-44). In pursuit of this objective of discursive solidarity through public trials, Osiel recognizes and responds to six primary challenges to both the appropriateness and effectiveness of public criminal justice trials. First, in a liberal society, the rights of defendants are strongly valued, but the type of trial to make the good public theatre necessary for popular engagement endangers fair trial for defendants. Osiel argues that liberal show trials are justified on the grounds of the "liberal nature of the stories being told .... Liberal show trials are ones self-consciously designed to show the merits of liberal morality and to do so in ways consistent with its very requirements" (p. 65). Second, if the criminal trial and hence the legal system, is to effectively change the collective memory it must tell "stories" compelling to the general public. The concern is that, in order to create interesting narratives, the historical record could easily be compromised. His rejoinder is that because legal scholars have always recognized the existence of competing narratives, a fact he believes historians have only recently accepted, the legal system is constructed to tolerate such ambiguities. He concludes that "courts may legitimately tailor the stories they tell in order to persuade skeptical publics of the merits of liberal morality. But they may not exclude incompatible stories from public hearing" (p. 141). Historians will provide some of these incompatible narratives. These narratives will eventually, in a free liberal society, compete with the official legal interpretations to influence the collective memory. The third danger in the use of public criminal trials is found within the inherent limitations of legal precedent. One extreme view of precedent reads the legal judgment in these trials as controlling in later cases. The author argues such an interpretation greatly increases the authority allocated to the legally determined victims. By increasing the identity of survivors as victims, Osiel fears that a country will cease to develop into a healthy democracy. The second extreme emerges if precedent is read too narrowly, requiring too few to assume responsibility for the recent atrocities in the country's history. "The past can have little relevance to the present when it is understood as a story about how the evil few led the innocent many astray" (p. 158). For a trial to overcome these limitations, Osiel argues that those representing the law, specifically prosecutors and judges, must be forward in publicly asserting the strengths and limits of the law. A fourth concern in reconstructing collective memory in a fractured society through a public criminal trial is the ability of the law "to infuse shared recollection of moral failure" (p. 166). Osiel finds that maintaining discursive solidarity as a clear goal of the trial is the only way in which the relationships between accuser and accused can remain fluid with both sides recognizing complicity, both collectively and individually. The fifth obstacle Osiel identifies is the viability of constructing a new collective memory, especially with only public law as a tool. Can law change social norms? He argues that the role of the law in these circumstances should be "to stimulate a candid discussions of just what these shared norms are, or should be" (p. 210) resulting again in discursive solidarity. Osiel realizes that social solidarity and collective memory may be either coincidental by-products or elements that can be deliberately constructed. Nevertheless, he asserts that whatever legal participants do be done publicly and visibly. This, he argues, mitigates many potential dangers. The final concern he addresses is the implications of such public construction of collective memory. Osiel does not find this form of legal engineering a threat to judicial legitimacy, in part because "leading legal theory already acknowledges an element of 'construction' ineradicably present in the very nature of legal interpretation within a liberal community" (p. 242). Yet, many of these influences must be kept private to maintain legitimacy, not of the court, but of its resulting narrative. This narrative must become the authoritative interpretation in order to influence the collective memory, but to ensure discursive solidarity it cannot mandate closure. Osiel concludes by arguing that despite moral challenges to such blatant legal and political manipulation and regardless of the practical limitations of the criminal justice process, "it is not too much to hope that courts in such societies might make full use of the public spotlight trained upon them at such times to stimulate democratic deliberation about the merits and meaning of liberal principles" (p. 300). The resulting debate creates the discursive solidarity fundamental to a liberal pluralistic society. MASS ATROCITY, COLLECTIVE MEMORY, AND THE LAW attempts to encompass sociological and more traditional legal scholarship in its analysis. onsequently, it is not a traditional social science study. It may be more appropriately described as an integrative essay. However, because of the approach used by the author to support and develop his arguments, it is extremely difficult for a reader to critique his larger themes and conclusions. This approach, or lack of one, is the primary weakness of this book. To Osiel's credit, he considers the responses of various schools of thoughts to his arguments, especially those of liberal theorists, communitarians, and postmodernists. However, his analysis is constructed in a piecemeal, "proof-text" manner, in which the author utilizes brief quotes, authorities, connections, and conceptual frameworks to support or refute his ideas. The author does not provide the contexts, connections, or analyses necessary for a work so ambitious in its attempt to integrate diverse fields. A reader who does not possess a thorough knowledge of the various works, events, and authors cited, will be only able to give this book a superficial read. A consequence of such a style is that a general academic audience will not be able to appreciate his varied and esoteric allusions to philosophy (moral and political), current and historic events, historiography (defined as historical interpretation) literature, theory, theatre, fiction, sociology, law, etc. A similar flaw is evidenced in his methodological structure. Instead of using several, well-defined case studies consistently accessed throughout the book, he uses brief episodes, undefined and undescribed, to support his analysis. This is especially evident in his primary case study of Argentina, for which he gives no definition of either the atrocity or the relevant trial. By not specifically defining his terms (e.g., "bureaucratic mass atrocity") or his analytical assumptions, Osiel limits both his impact on the scholarly community and on the individual reader. Osiel raises fascinating questions about the manipulation of a criminal justice trial for the construction of a liberal democracy. Such issues animate debate and research in a large number of correlative fields. Osiel illustrates in his attempts at integration the ambitiousness of such a task.
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Product Details

  • ISBN-13: 9780765806635
  • Publisher: Transaction Publishers
  • Publication date: 9/1/1999
  • Edition description: New Edition
  • Pages: 328
  • Product dimensions: 6.00 (w) x 9.00 (h) x 0.69 (d)

Meet the Author

Mark Osiel is professor of law at the University of Iowa. He is the author of Obeying Orders: Military Discipline, Atrocities and the Law of War.

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Table of Contents

Preface and Acknowledgments
Introduction 1
Introduction 13
1 Crime, Consensus, and Solidarity 24
2 Solidarity Through Civil Dissensus 36
3 Defendants' Rights, National Narrative, and Liberal Memory 59
4 Losing Perspective, Distorting History 79
5 Legal Judgment As Precedent and Analogy 142
6 Breaking with the Past, Through Guilt and Repentance 166
7 Constructing Memory with Legal Blueprints? 209
8 Making Public Memory, Publicly 240
Conclusion 293
App Collective Memory in the Postwar German Army 302
Index 311
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