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Annu. Rev. Law Soc. Sci. 2012. 8:273–89 Keywords

First published online as a Review in Advance on history, trials, critical legal theory, Arendt, Eichmann in Jerusalem
August 16, 2012

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This article examines the relationship between law and historiography.
Law played a central role in the creation of the nation-state. Histo-
riography also narrates the victories and sacrifices of the nation and
constructs its “imagined community.” Recently, court hearings are in-
creasingly used for history authentication. Developing Hannah Arendt’s
argument in Eichmann in Jerusalem, the article argues that legal proceed-
ings are not suitable for clarifying the historical record.

273
 LS08CH14-Douzinas
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ARI 28 September 2012 13:35
INTRODUCTION
Each death leaves something good behind, its mem-
ory, and demands that it be recalled. The magis-
trates must supply friends to those who have none.
Because law and justice are more certain than our
forgotten tenderness, our tears shed so quickly. This
magistracy is History. And these deaths are, to use
the Roman law terms, the miserabiles personae
that the magistrate must preoccupy himself with.
I never lost in my career the historian’s path of
duty. I have given to many forgotten dead the help
I myself will need. I have exhumed the dead for a
second life. . . . [T]hey live now with us who have
become their parents, their friends. Thus a family
is created, a common city between the living and
the dead.
—Michelet (2002, pp. iii–iv)
This is how Jules Michelet, the great historian
of the French Revolution, described the role of
the historian in 1842. Michelet drew a strong
link between history, law and nation. Modern
law and history have been central in the
emergence of the nation-state. For Michelet,
however, the difference between the two was
also clear. Magistrates pass judgment on the
cases before them—their justice belongs to
the present; historians judge the past. Judging
the past makes historiography resemble a
court of law, but the vocation is different.
Historians exhume the dead in order to create
a family story, a genealogy in which dead and
living are part of the same community and
nation.
In a major transformation with cultural,
political, moral, and epistemological conse-
quences, the judgment of history and the work
of memory has been recently entrusted to
law and judicial procedures of various kinds.
The trend for history trials started with those
in Nuremberg and Tokyo, then moved to
Adolf Eichmann to the French trials of the
Nazi collaborators Klaus Barbie and Maurice
Papon to the trials of leaders in Yugoslavia,
Rwanda, Iraq, and other postconflict societies.
It has now found its institutional comple-
tion in the fledgling International Criminal
274 Douzinas
Court. Criminal proceedings have become our
culture’s essential response to mass violence. In
a different type of history trial, historiography
itself is put in the dock. The Holocaust-denial
trials in Germany and Canada and the libel case
between the English denier David Irving and
the historian Deborah Lipstadt are attempts to
judge the historical record and indirectly histo-
riography itself. [David Irving’s libel action was
partly based on Lipstadt (1994).] In a parallel
development, quasi-judicial bodies have un-
dertaken to unearth the truth about important
historical events. The South African Truth
and Reconciliation Commission (TRC) and,
in Britain, the Saville inquiry into the Bloody
Sunday killings, the Hutton inquiry into the
death of David Kelly, and the Chilcot inquiry
into the Iraq war all belong to this category.
The ascription of criminal liability to mili-
tary and political leaders for atrocities is a major
innovation of our legal civilization. This article,
however, examines a different aspect of history
trials. Reporting his experience as an expert wit-
ness in the 2001 David Irving libel trial, the his-
torian Richard Evans (2001, p. 188) wrote that
the London “High Court turned out to be a
good place to settle the historical and method-
ological points at issue in the case.” This is a
surprising admission for someone who has set
himself the task of defending historiography
against postmodernists, literary and cultural
theorists and other detractors (Evans 1997,
p. 252). [Evans concludes that he remains “op-
timistic that objective historical knowledge is
both desirable and attainable” (p. 252).] It marks
a clear change from the position of Michelet, for
whom the historian is the sole judge of the past,
someone who assumes the judicial role but for
different reasons and with different effects. Why
this transformation from Michelet to Evans, in
which the historian asks the law to judge its his-
torical and methodological disputes? How does
the law deal with the claim of history?
This article examines the close and troubled
relationship between law and historiography.
Modern law played a central role in the
creation of the nation-state. The 1789 French
Declaration of the Rights of Man and Citizen,
 LS08CH14-Douzinas ARI 28 September 2012 13:35
the 1962 Eichmann trial (the most celebrated
history trial) and the South African TRC are
examples of such foundational moments in
which law shaped the future by judging the past.
Historiography, by narrating the victories and
sacrifices of the nation, helped construct the
nation-state’s imagined community (Anderson
1991). Recently, however, as confidence in
traditional historiography has declined, court
hearings have become increasingly mobilized
for history’s authentication. Hannah Arendt
argued in her Eichmann trial commentary that
the Jerusalem court distorted the integrity of
Annu. Rev. Law. Soc. Sci. 2012.8:273-289. Downloaded from www.annualreviews.org
criminal justice and placed the future of the
state of Israel on a wrong footing. Developing
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Arendt’s legal argument, the article concludes
that legal proceedings are not suitable for
clarifying the historical record.
CRISES OF HISTORY AND
COLLECTIVE MEMORY
Modern historiography is closely linked with
the creation of the European nation-state.
Michelet writes in order to redeem the dead
but judges on behalf of the living, turning the
dialogue between the two into a common city,
republican France. The narration of the stories
of the dead aims to show how their sacrifice led
to the French revolution and the creation of the
French nation. The exhumation and speaking
of the dead establishes the importance of the
living. The celebration of victories, heroic acts,
and conquests or the mourning of defeats, for-
eign occupations, and disasters is a main trope
of modern history and of European nationalism
in particular. At the origin of the nation, we find
a story of the nation’s origin.
The commemoration of past glories is often
supplemented with the tropes of the new, of an
emergence that severs its ties with the past. The
eighteenth-century revolutionaries were not
initially concerned with historical continuity.
The Jacobins suspended received temporality
on October 5, 1793, when the National Con-
vention abolished the Christian calendar and
launched a new era with Year One, starting at
the inauguration of the Republic on September
22, 1792. The consolidation of the revolutions,
www.annualreviews.org • History Trials: Can Law Decide History?
however, changed attitudes about the past. The
Americans promoted the image of the free-born
Englishman with his God-given freedoms, and
the French returned to the Gregorian calendar,
with Year One becoming 1792 AD. As Hayden
White (1973) argues, by the second quarter
of the nineteenth century, history had become
a “discipline” with its rules, journals, and
Chairs. The five founding fathers of the mod-
ern practice—Ranke, Michelet, Tocqueville,
Marx, and Burckhardt—were all born within
the 25 years following the rupture of Year One
(White 1973, pp. 135–43). The past was put at
the service of the present, as Michelet wanted.
The narration of nation looks to the past as a
point of origin and departure and to the future
as the horizon of destiny and arrival.
The anxiety of identity, the urge to embel-
lish the past, to see the present as its natural
destination and the future as its inevitable ful-
fillment, is at its most evident (and grandiosely
absurd) when a new nation is born. The well-
known argument that tradition is invented
emphasizes strategies of historiography and
commemoration through which traditions are
fabricated in order to shape and direct the
“imagined community” of the nation-state
(Hobsbawm & Ranger 1983). Myths and
rituals create images of the past in the service
of contemporary political priorities and the
interests of power. A standard strategy fol-
lowed by pioneer historians, statesmen, and
intellectuals of emerging European nations
was the cultivation of cults of memory, which
included places, chronologies, and rituals.
Grandiose mausoleums and later museums
were dedicated to the glories of the past, sites
of glorious triumph or sad disaster were sancti-
fied, and magnificent statuaries to fallen heroes
and—much later—tombs to the unknown
soldier were erected. Mythological fathers
of the nation, heroes of national liberation
and figures of worship emerged and were
commemorated in shrines, which became
places of pilgrimage, sites for festivals and days
of commemoration and remembrance.
These enchanted memories are complex
strategies of identity construction based on the
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ARI 28 September 2012 13:35
belief that people acquire a sense of belonging
if they recover the lost memories of their com-
mon origins and heritage. The fabrication of a
pure point of origin placed in a linear historical
time aims to give the modern nation a “tem-
poral depth,” to construct it as a quasi-natural
epiphany of a long and hallowed past and
endow it with moral and political authenticity
(Calhoun 1997, p. 5). Friedrich Nietzsche
(1957) called this kind of history monumental.
It aggrandizes, magnifies, and celebrates great
events and heroes of the past. In contrast,
critical history mobilizes human suffering and
the desire for deliverance. “Only he whose
heart is oppressed by an instant need and who
will cast the burden off at any price feels the
need of critical history, the history that judges
and condemns” (Nietzsche 1957, p. 13). Walter
Benjamin’s philosophy of history repeated Ni-
etzsche’s indictment. Historicism, the canoni-
cal history of the nation-state, portrays the past
as something eternal, unraveling in an “empty”
homogeneous time, filled with a mass of data,
an endless sequence of events like the beads of a
rosary (Benjamin 1999b, pp. 254–55). This type
of historiography repeats the phenomenon that
psychoanalysis describes as the mirror stage.
The infant beset by disobedient limbs and
uncontrollable urges sees herself in the mirror
or the eyes of the mother and acquires a first
impression of her unity and oneness, a pivotal
process in the creation of identity. But this is
an imaginary unity, created through the pro-
jection of an imaged and imagined identity that
comes from outside. Similarly, the constructed
history of enchanted memories becomes the
mirror in which a fragmented, fractious,
injured community sees itself as beautiful,
coherent, happy. This conception of history
as the mirror of the nation is one way through
which the concerns (often the bad faith) of the
present pay their respects to the past.
This type of history has come under pres-
sure in the past 40 years. In the same period,
collective-memory and trauma studies started
acquiring professional credibility. The concept
of collective memory refers to the collectively
shared representations of the past. It was
276 Douzinas
introduced in the 1920s by the French sociol-
ogist Maurice Halbwachs (1925, 1941, 1980).
For Halbwachs, memories are not mechanical
inscriptions of the past on the mind but a
continuous and creative reconstruction under
the influence of present concerns, pressures,
and fears. People view the past from their
present perspective developed in the context
of their ethnic, class, political, professional,
and other communities. Individuals remember
as members of social groups; group memory
is manifested in its individual members’
memories. But as memory depends on social
belonging, individual memory is a perspective
only on collective memory, whereas collective
memory is pluralistic and ambivalent.
Historians initially dismissed the idea of
collective memory. Historiography follows
strict methods and procedures for the col-
lection, corroboration, and interpretation
of facts. The emergence and recording of
collective memories in local and oral histories
on the other hand does not follow these
strict protocols. It is embellished with myths,
folk tales, and reminiscences that could not
survive the cold survey of the professional
historian. Halbwachs himself admitted that
memory is not a good guide for historiography
because it concentrates on everyday life instead
of important events and people and offers
vague images of the past. However, despite
many reservations, collective-memory studies
entered the academy in the 1980s.
A number of factors contributed to this
mutation in the dominant paradigm (Winter
2000). The legacy of the 1960s created a
new interest in the history of the dominated,
excluded, and subaltern. The historiography of
the “others” needed nontraditional methods, as
their lowly lives had not entered the hallowed
records of past achievement and were scarcely
represented in official archives. The concepts
of counter-memory and counter-narrative,
popularized by Michel Foucault (1977), be-
came building blocks of these new histories.
Individual and collective recollections left the
plebeian worlds of autobiography, cheap
paperback, and popular magazine and entered
 LS08CH14-Douzinas ARI 28 September 2012 13:35
the lecture hall, the seminar room, and
the academic press. This fragmentation of
canonical history was further strengthened
by the postmodern turn. History writing was
approached as a narrative construction not
radically different from literature (White 1985;
Ricoeur 1990, p. 264). Literary-minded histo-
rians turned to narrative structures, rhetorical
devices, and aesthetic criteria, emphasizing the
etymological link between story and history
in their mother term historia. The historical
record and previous histories were examined
again for their uncertainties, ambiguities, and
Annu. Rev. Law. Soc. Sci. 2012.8:273-289. Downloaded from www.annualreviews.org
ruses. The idea of history as a story about the
past became marginally orthodox, both as the
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history of the margins and as a marginal but
potent attack on the historical canon.
These changes in historiography accompa-
nied a growing concern among professional
historians and cultural commentators about
the loss of historical awareness in late cap-
italism. The French historian Pierre Nora
(1984, 1986, 1992) has proposed a periodiza-
tion of memory construction with premodern,
modern and postmodern stages. Premodern so-
cieties have “environments” of memory; they
exhibit a natural, unselfconscious relationship
between people and their past. Memory sus-
tains traditions and rituals, providing a stable
sense of being over time. Modernity’s accelera-
tion of time, however, meant that old traditions
lost their meaning and that the relationship to
the past was reconstructed through first-order
simulations of natural memory. Elites produced
“sites of memory” in language, monuments,
and archives, the main referent of which was
the nation-state, and tried to secure the fu-
ture through the “invention of tradition.” The
recent strains on the nation-state have led to
second-order simulations of natural memory by
the dominant media. Today’s costume docu-
dramas are a good example. They offer identi-
ties and representations of the past with little
relation to shared traditions, life worlds, and
political institutions except for the pace of me-
dia consumption itself. Such constructed and
artificial memories become a problem rather
than a support of collective identity. They are
www.annualreviews.org • History Trials: Can Law Decide History?
accompanied by heightened anxiety about the
forgetfulness of the past and of history’s mir-
roring effect.
Eric Hobsbawm (1994, p. 3), the doyen of
English history, agrees: “The destruction of the
past, or rather of the social mechanisms that link
one’s contemporary experience to that of earlier
generations is one the most characteristic and
eerie phenomena of the late twentieth century.
Most young men and women at the century’s
end grow up in a sort of permanent present
lacking any organic relation to the public past of
the times we live in.” Frederick Jameson (1991,
p. 309), another emblematic cultural theorist,
concurs: “[T]he past has disappeared along
with the well-known “sense of the past” or his-
toricality and collective memory.” The spatial
logic of the simulacrum has radically changed
what used to be called historical time. The past
is at best modified and at worst invented, as all
its memorials are equally distant and equally
accessible in mediatic representations. “The
retrospective dimension indispensable to any
vital reorientation of our collective future—has
itself become a vast collection of images, a mul-
titudinous photographic simulacrum” (p. 18).
Memory is constantly on our lips because it
no longer exists. It has become a value that
reflects the spirit of our times, Benjamin’s
“empty time.” History reflects contemporary
melancholia, mourning a society we have lost
and a sensibility we may never recover.
These cries of despair are linked with the
perceived crisis in historiography. But they
coincide with a wider turning point. Whether
authorized and canonical or marginal and
alternative, history cannot avoid its vocation to
help understand the present tasks. Founding
myths and master narratives as much as the
local and oral histories of the subaltern call on
the past in order to authenticate contemporary
fragile identities. But as history’s support for
identity construction has been weakened, the
nostalgic turn to collective memory with its
sites, narratives, and simulacra is melancholic
and regressive. The premium placed on
memory and traumatic recollection indicates
a crisis in modern temporality and the need
277
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to rebuild unsettled territorial boundaries and
temporal continuities. The stage is set for
Michelet’s historical magistrate to become a
real magistrate, for the judge to turn historian.
LAW AND/AS HISTORY
History is a key contributor to the epic of the
nation. Law has played a similar role. The
nation is a Janus figure. One face looks to a
mythical past and a golden age, and the other
is turned to the future in which the promise of
history will be fulfilled. This double temporal
Annu. Rev. Law. Soc. Sci. 2012.8:273-289. Downloaded from www.annualreviews.org
of the great revolutions of the eighteenth
century. Their constitutions and declarations,
in tune with the consciousness of the times,
were quite clear about their unprecedented and
future-looking character, provoking vitriolic
attacks by conservatives such as Edmund Burke
and Joseph de Maistre (Douzinas 2000, ch. 7).
(For a discussion of Burke’s objections to
the Declaration, see Douzinas 2000, ch. 7.)
If historians saw their task as establishing
a continuum between past and present, the
legislators framed their documents from the
perspective of a democratic and liberal future.

orientation is a permanent legal characteristic.

This double implication in past and future
Statutes, authorities, and precedents form a
is particularly evident in the revolutionary
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formidable thesaurus of past texts, many of

treatment of natural rights. The American
which draw their authority from their antiquity
and French revolutions pronounced natural
and longevity. But law’s historical resonance
rights eternal and universal. Yet, the French
is firmly turned toward the future. New law is
Declaration was quite categorical as to the
made in order to regulate a myriad of future
real source and beneficiaries of these universal
cases always still to come. This preempting and
rights. Article 1 states that “men are born and
controlling of the future are integral parts of all
remain free and equal of right.” Article 2 adds
legislation. Occasionally, this future orientation
that “the aim of any political association is to
moves from routine operation into the center
preserve the natural and inalienable rights of
of legal operations. These are the foundational
man,” and Article 3 proceeds to define this as-
moments in a nation’s history. Constitution
sociation: “The principle of all Sovereignty lies
making is such a moment, particularly after
essentially with the nation.” The constitutional
liberation from conquest or regime change.
declaration established the sovereignty of the
Judicial proceedings and truth commissions
nation-state, made the national citizen the ben-
have also been used in nation building. Such
eficiary of rights. Citizenship introduced a new
moments project a bright future for the nation
type of privilege, which was protected for some
and become secular rituals of commemoration
by excluding others, noncitizens, minorities,
and focal points for its memory.
aliens. Although the Declaration pronounced
The next section examines two foundational
the universality of right, its immediate effect
moments separated by some 200 years, both re-
was to establish the boundless power of its
sponding, in different ways, to the call of his-
alleged antagonist, the nation-state. In a para-
tory and the promise of the future: first, the
doxical fashion, these declarations of universal
1789 French Declaration of the Rights of Man
principle “performed” the foundation of local
and Citizen, the manifesto of legal and politi-
sovereignty. The promised future universalism
cal modernity, and, second, the 1962 Eichmann
supplemented the claims to long historical
trial in Jerusalem, an event that contributed to
provenance (Douzinas 2000, ch. 5).
the canonical history of the state of Israel.
Both universal humanity and national
sovereignty were inaugurated in the same act.
Law and the Future: the French The new state called upon history to establish
Declaration of the Rights of Man the claims of the nation, a call avidly taken
and Citizen up by the newly established historical pro-
The relationship between past and future fession. From that point, nation and human-
formed the philosophical and political horizon ity, the past as historical achievement and the

278 Douzinas
 LS08CH14-Douzinas ARI 28 September 2012 13:35
future as political and philosophical project,
mark a double temporality, which became the
horizon of the present. The performative power
of the law was mobilized to bring about the na-
tion of historical narrations and the humanity
of philosophical speculation. Nation and hu-
manity were the two referents the revolutionary
constitutions brought into life. Philosophies of
history promised the future unification of na-
tion and humanity. The two variants of this
project were already evident in France: Aggres-
sive nationalism and its progeny, imperialism,
in which the nation becomes the expression of
Annu. Rev. Law. Soc. Sci. 2012.8:273-289. Downloaded from www.annualreviews.org
humanity and spreads its civilizing influence to
the world; or, cosmopolitanism, in which hu-
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manity overcomes national differences and con-
flicts in a global civil society (Douzinas 2007,
ch. 6, 7). From that point onward, the two great
professionals of state, the practical lawyer and
the historian-philosopher, were assigned the
dual task of recalling the past or prefiguring the
future in order to control the present.
Law and the Past: Eichmann
in Jerusalem
Over the past 50 years, history trials have been
increasingly asked to negotiate the relationship
between past and future or between nation
and humanity (Kirchheimer 1969, Laughland
2009). [Not many books deal comprehen-
sively with the use of law for political ends.
Kirchheimer (1969) remains the classic in the
field. For a more recent journalistic discussion,
see Laughland (2009).] The 1962 trial of
Eichmann in Jerusalem brought this innova-
tion to international attention. The trial was
a foundational moment both for the state of
Israel and for the use of the courtroom to judge
history. Arendt (1994) discussed these issues in
her extraordinary book Eichmann in Jerusalem,
the first and still most important examination
of the role of law in the redemptive function of
history and one of the most important examples
of critical legal theory. [The chief prosecutor
gave his own version in Hausner (1966).]
Arendt’s book has generated a heated debate
among historians and cultural critics but has
www.annualreviews.org • History Trials: Can Law Decide History?
not been discussed much by legal scholars.1 We
will briefly concentrate on its lessons for law.
Eichmann in Jerusalem is a detailed exam-
ination of the challenges posed by the judg-
ment of history and of radical evil. Carl Jaspers,
Arendt’s teacher, had argued that the law could
not deal with the Holocaust. “The political
realm,” wrote Jaspers, in a letter to Arendt be-
fore the trial, “is of an importance that cannot
be captured in legal terms (the attempt to do
so is Anglo-Saxon and leads to a self-deception
that masks a basic fact in the functioning of po-
litical existence). . . . A dimension that in being
‘political’ has, as it were, dignity, is larger than
law and is woven into the fabric of fate” (Arendt
1994, p. 64). According to Jaspers, the enor-
mity of guilt, in contrast to ordinary criminal
guilt, oversteps and shatters the legal system.
We are simply not equipped to deal on a hu-
man political level with a guilt that is beyond
crime. “Actions like Eichmann’s. . .stand out-
side the pale of what is comprehensible in hu-
man and moral terms, so the legal basis of trial
is dubious. Something other than law is at stake
here—and to address it in legal terms is a mis-
take” (p. 64). (On radical evil and law’s ability
to deal with it, see Hirvonen & Porttikivi 2009,
Nino 2000.) Arendt disagreed, however, believ-
ing that law offered the only means for dealing
with the crimes. “It seems to me that we have no
tools to hand except the legal ones with which
we have to judge and pass sentence on some-
thing that cannot be adequately represented ei-
ther in legal terms or in political terms” (Arendt
1994, p. 64).
And yet Arendt concludes that the trial
ended as a legal and symbolic failure. “The
irregularities and abnormalities of the trial in
Jerusalem were so many, so varied, and of such
complexity that they overshadowed the central
1
Arendt’s (1994) book created a major and still raging contro-
versy. Gershom Scholem attacked Arendt for anti-Zionism,
and Robinson (1965) wrote a detailed criticism of the book.
Arendt answers some of the criticisms in her epilogue to the
book and expressed her distress at the reaction in her cor-
respondence with Mary McCarthy (see Brightman 1995; see
also Benhabib 1995, Reichman 2009). For a legal commen-
tary, see Bilsky (2004).
279
 LS08CH14-Douzinas
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ARI 28 September 2012 13:35
moral, political, and even legal problems that
the trial inevitably posed” (p. 253). The main
legal problem was the abuse of criminal jus-
tice. The purpose of a criminal trial is to “ren-
der justice, and nothing else; even the noblest
ulterior purposes—‘the making of a record of
the Hitler regime which would withstand the
test of history[,]’. . .as the supposed higher aims
of the Nuremberg trial were formulated—can
only detract from the law’s main business: to
weigh the charges against the accused, to ren-
der judgment, and to mete out due punishment”
(p. 253). Monumental trials should aim to re-
pair the community and make visible the sober
authority of law. Their pedagogical success de-
pends, therefore, on their strict adherence to
legal procedure. The proceedings should have
concentrated on the deeds of Eichmann, not on
the suffering of the Jews or anti-Semitism.
But the failure was greater. The symbolic
and didactic tasks misfired too. The trial was a
crucial foundational moment for Israel, its im-
portance enhanced by the absence of a written
constitution. Yet, if the prosecution’s aim was
to set the foundation story of Israel, it did so
on mistaken and highly problematic grounds.
In ascending order, Arendt criticized the trial
for turning the law into an instrument of state
power and distancing it from justice. It missed
the opportunity to continue and complete the
Enlightenment project of constructing a uni-
versal humanity. Arendt’s sharpest criticisms
were reserved for the Israeli Prime Minister
David Ben-Gurion, the “architect of the state”
and choreographer of the trial, and for his
“representative,” the chief prosecutor Attorney
General Gideon Hausner, who did “his very
best to obey his master” (p. 5). (There is an
obvious irony here that points to Eichmann’s
defense that he obeyed orders.) As the historian
of the Holocaust Tom Segev (1991, p. 338) put
it, by focusing on the testimony of victims, cal-
culated to shock the heart, Hausner “sought to
design a national saga that would echo through
the generations” and would construct the
Israeli national identity. But this was precisely
Arendt’s complaint. The trial’s choreography
was manipulated to teach non-Jews, diaspora
280 Douzinas
Jews, and the post-Holocaust Israeli youth
“superfluous and misleading” history lessons.
The main strategy was to explain how Judaism
faced always a hostile world, how Jews had
degenerated and only “the establishment of a
Jewish state had enabled the Jews to hit back, as
Israelis had done in the War of Independence,
in the Suez adventure, and in the almost daily
incidents on Israel’s unhappy borders.” Indeed,
Arendt attacked Ben-Gurion for using the trial
to establish a link between Jews and Israel’s
current enemies, “to ferret out other Nazis
—for example the connection between the
Nazis and some Arab rulers,” while, incredibly,
excepting the West German establishment
from criticism for their reluctance to prosecute
Nazis (Arendt 1994, p. 10).
Arendt’s critique was not based on an
abstract and idealized view of the law. She
attacked the many legal defects of the trial,
such as the kidnapping of Eichmann in clear
violation of international law and territoriality,
and the various obstacles placed on the defense.
But these illegalities did not lead to the con-
demnation of the verdict. Those “who are con-
vinced that justice, and nothing else, is the end
of law will be inclined to condone the kidnap-
ping act, though not because of precedents but,
on the contrary, as a desperate, unprecedented
and no-precedent-setting act” (pp. 264–65).
The idea was that Eichmann should hang for
participating in a policy of elimination of Jews
and a number of other nations (pp. 277–79).
Echoes of Arendt’s friend Walter Benjamin can
be clearly heard. Benjamin (1978, pp. 277–300)
had argued in the Critique of Violence that the
law carries within it a law-founding and a
law-preserving violence. War is the father of
law; violence lies at the foundation of states
and is encrypted in their legal system. Police
action and criminal law, conversely, are the
law-preserving violence. Arendt’s position was
similar. The violence at the origin of state can-
not be avoided. Israel was established through
acts of violence, including terrorism and a war
of independence. The retrospective legitimacy
Israel was seeking through Eichmann’s trial
was also based on violence and lawlessness.
 LS08CH14-Douzinas ARI 28 September 2012 13:35
Yet, although the Israeli acts were violent and
unlawful, this in itself should not be used to
condemn the state. As Benjamin had argued,
an original violence (of war, revolution, or the
general political strike) founds new states and
laws and becomes encrypted in the legal system.
At the same time, Arendt was scathing about
the prosecution. The state should not use his-
tory and law for didactic purposes. When the
Attorney General quoted from Émile Zola’s
J’Accuse in an obvious reference to the persecu-
tion of Jews, Arendt was furious. The heartfelt
cry against injustice belongs, indeed is indis-
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pensable, to the victim and is more convincing
“in the mouth of a man who has been forced
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to take the law into its own hands than in the
mouth of a government-appointed official who
risks nothing” (Arendt 1994, p. 266). Arendt’s
loyalty was to a law informed by justice not to
rulers and states (p. 222). When criminal tri-
als are made to judge history, they lead to “bad
history and cheap rhetoric” (p. 19) as well as
bad law. The historical record was manipulated
because the witnesses were carefully selected
by the prosecution and “of some prominence.”
They repeated well-known stories they had told
many times and were unrelated to Eichmann’s
actions. They could not distinguish between
what had happened to them and what they
had read, heard, or imagined and were given
“the right to be irrelevant” (pp. 8, 224, 225).
As a result, Eichmann was presented both as a
“perverted sadist” and as the representative of
Nazism and anti-Semitism at large. The legal
requirement to prove intent for criminal con-
viction distorted the record and missed the fact
that the Nazis were “terribly and terrifyingly
normal” (p. 276).
Turning finally to the philosophy of history,
Arendt’s complaint was that by narrating the
story of the Holocaust as a genocide aimed at
the Jews rather than at humanity, the prose-
cution misunderstood its novelty. Ben-Gurion
was quite open about the Zionist disillusion-
ment with liberalism and its accompanying
moral universalism, which had misled Jews
into assimilation and eventually annihilation.
The trial was consequently framed in terms
www.annualreviews.org • History Trials: Can Law Decide History?
of a tragic epic, which moved from collective
victimization and suffering to resistance, resur-
rection, and redemption in the state of Israel.
It projected the duality of Israeli existence as a
persecuted and murdered people and as a saved
and strong nation sitting in historical judg-
ment. The trial presented the Holocaust “as
not much more than the most horrible pogrom
in Jewish history.” In doing so, it showed
a distinct misunderstanding of its historical
magnitude and philosophical novelty (p. 267).
The presentation of Nazism as a culmination
of anti-Semitism and the emphasis on the
traumatic experience of the victims/witnesses
created a numbness which, translated into legal
consciousness, undermined the integrity of the
trial.
Furthermore, the repetitive character of
the testimonies concealed the unprecedented
banality of bureaucratic evil. The prosecution
and the court did not understand that the crime
could and would be repeated. Its novelty was
that by trying to eliminate the Jews and other
nations, it offended not against one particular
people but against humanity, against the hu-
man status. Agreeing now with Jaspers, Arendt
argued that Israel should have held Eichmann
prisoner and should have asked the United
Nations to create an international tribunal, the
only forum that could represent humanity and
give full force to the new crime (pp. 269–73).
Such action would have helped symbolically
and pedagogically to prevent “the massacre of
the Jews. . .from becoming a model for crimes
to come, perhaps the small-scale and quite
paltry example of future genocide” (p. 270). It
was the first time that “Jews were able to sit in
judgment on crimes committed against their
own people. . . . [T]hey did not need to appeal
to others for protection and justice, or fall upon
the compromised phraseology of the rights of
man—rights which, as no one knew better than
they, were claimed only by people who were
too weak to defend their ‘rights of Englishmen’
and to enforce their own laws” (p. 271). By
so doing, Israel placed at the center of its
foundational narrative the claims of national
sovereignty against its past and future enemies
281
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rather than the historical mission of rewriting
law and principle for an atrociously dangerous
world. Ensnared in the past the court failed to
establish a new concept of law and justice.
“It is quite conceivable,” wrote Arendt (1979
[1951], p. 299) in 1951, “that one fine day a
highly organized and mechanised humanity will
conclude quite democratically—namely by ma-
jority decision—that for humanity as a whole
it would be better to liquidate certain parts
thereof.” In the genocides and atrocities that
followed the Holocaust, as Arendt had pre-
dicted, humanity became again a target for
elimination. The demise of naturalism, the sub-
jection of conscience to positive law, meant
that no normative resource for disobeying even
the most atrocious superior orders was readily
available. Immanuel Kant’s categorical imper-
ative had turned into a version “for the house-
hold use of the little man”—a maxim not in-
consistent with most of positivist jurisprudence:
“Act as if the principle of your actions were the
same as that of the legislator or of the law of
the land” (Arendt 1994, p. 136). Arendt’s recon-
structive effort was to narrow the gap between
nation and humanity opened by the Enlight-
enment declarations, in a cosmopolitan direc-
tion. By giving flesh and blood to a suffering and
threatened humanity, she attempted to turn an
abstract philosophical concept into a criminal
offense and humanity into a concrete mass of
people, communities, and nations, whose future
is not the promise of fulfillment of the philoso-
phies of history but elimination.2
SEEKING TRUTH: HISTORY AND
MEMORY ON TRIAL
Shoshana Felman (2002) has argued that the
Eichmann trial carried out a major conceptual
2
Recently, the gap between humanity and nation has nar-
rowed in the imperial aspirations and the humanitarian wars
of the new world order. References to the Holocaust and the
moral turn of international law were extensively used to jus-
tify the wars on Kosovo and Iraq. As Robinson (2003, p. 88)
puts it, “The Holocaust repeatedly occupies the position of
exhibit A in the case for a militarily enforceable global law
based on universal human rights.” See generally Douzinas
(2007, n.21).
282 Douzinas
revolution. The Jerusalem court provided a
stage for the expression of the persecuted and
empowered the oppressed to deliver the judg-
ment of history. The trial allowed those who
had been silenced to be seen and heard. Before
the trial, the victims of the Holocaust were “ex-
pressionless,” faceless, treated as already dead.
Drawing on recent theoretical trends such as
the fashionable trauma studies, victimology,
and law and literature, Felman argues that the
Eichmann trial prefigured, indeed founded,
the currently dominant emphasis in criminal
trials (and the humanities more generally)
on victimhood, trauma, and testimony. In
similar but more restrained terms, Laurence
Douglas (2001), in his review of the Holocaust
trials from Nuremberg to that of the Canadian
Holocaust-denier Ernst Zundel, concludes that
the law was asked to perform two contradictory
functions: to reintroduce rule-bound order
into moral chaos and punish the perpetrators
and, at the same time, to serve history and
memory by recording facts of astonishing
barbarism (Douglas 2001). For Douglas,
these dramas of didactic legality necessarily
blur the boundary between legal process and
extralegal factors. Over the past 50 years,
history trials have moved from the use of doc-
umentary evidence to traumatic testimony to,
finally, dispassionate historical evidence. The
Nuremberg trial displayed atrocities through
documentary evidence; its didactic project was
based on documentary proof with thousands
of documents aimed at recording astonishing
horrors. The didactic paradigm of Eichmann’s
trial was testimonial. The anguished evidence
of survivors linked the requirement of evidence
to personal tragedy of witnesses and offered
a picture of traumatic history, which defined
the terms of responsible memory. Finally, the
Holocaust deniers’ trials have used standard
evidentiary norms. Their didactic paradigm
is that of professional historian, the expert
who rebuts challenges to the authenticity of
documentary evidence and to the memory of
survivors. Douglas concludes that all three
paradigms are committed to redeeming history
and memory and drawing important lessons
 LS08CH14-Douzinas ARI 28 September 2012 13:35
for the future. Despite certain legal problems,
these trials were able to “clarify the historical
record, define the terms of responsible mem-
ory, and make visible the efficacy of the rule of
law” (Douglas 2001, p. 260).
Felman and Douglas dispute Arendt’s
verdict on the Eichmann trial. They write
after the recent proliferation of criminal trials
of political and military leaders for atrocities.
Individual criminal liability and punishment of
atrocious rulers are welcome developments. To
be sure, such trials can be abused for political
purposes (Laughland 2006). The suspicion
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of victors’ justice cannot be fully removed
from trials that follow radical political change;
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caution and responsibility must be exercised by
those entrusted with the delivery of justice. Our
concern here however is different. Is a criminal
trial the right forum for judging history,
using traumatic testimony to authenticate the
historical record? Was Arendt wrong when she
argued, writing as a political theorist rather than
a lawyer, that criminal trials should not be used
for didactic purposes, that they should follow
strict legal procedure, and, finally, that the law
makes bad history? As in so many other areas,
I believe that her intuition and conclusions are
correct. To see why she is correct and to gen-
eralize her criticisms, we must turn briefly to
the assumptions and procedures of liberal law.
Law’s philosophical anthropology assumes
that persons are endowed with reason, free
will, and moral autonomy, the corollary of the
application of reason on freedom. Legal per-
sonality is a technical construction and is not
the same as the empirical self (Douzinas 2000,
ch. 8). For law, acts have identifiable authors
(legal persons) who reflect and decide freely,
act on their decisions, and cause willed changes
in the world. Intended action; foresight and
acceptance of its consequences; clear causal
link between actor, act, and effects; and, finally,
a close match between act and the definition of
the relevant crime are cornerstones of criminal
justice. This architecture is reflected in the
distinction between motivation and intention.
Motive refers to purpose, need, and desire;
individual and collective history; and conscious
www.annualreviews.org • History Trials: Can Law Decide History?
decisions and unconscious drives to action—in
other words, to the elements that condition real
human action. Intention, however, is a legal
concept. It ascribes responsibility irrespective
of reasons or motives. Intention answers the
question “Did the defendant know (or should
he have known) and will what he did?”; motive,
“Why did he do it?” Intention is the lynchpin
of criminal law; motive is largely ignored in
the determination of guilt and is introduced
peripherally in sentencing or in certain excep-
tional defenses, such as duress. As criminal law
theorist Alan Norrie (1993, p. 37) puts it, the
law “neglects [motive] a normal mental element
in human conduct” and does not go “beyond
the standpoint of the small child.” Norrie finds
this state of affairs somewhat irrational, a result
of law’s bias. Indeed, law’s approach may depart
from the standard understanding of human
behavior, but the reasons are clear. Liberal
law has been built on the assumption that the
subject is morally responsible for her freedom
and legally liable for her actions. Criminal law
condemns wrong behavior not evil thoughts.
It disregards, therefore, motives as well as the
context of action, unwilled consequences, or
the ever-present interventions of contingency
in order to support the claims of free will and
to apportion blame.
It is precisely these demands of legal cor-
rectness that create difficulties for historical ac-
curacy. Individual agency is highly problematic
in the context of large-scale historical events.
For historians, individual actions take place
in complicated and contested environments.
Historiography prefers to avoid apportioning
individual blame for events that have resulted
from the complex interplay of social and
political factors, unintended and unaccounted
influences, and contingent factors. Social
and economic forces, systemic influences,
and structural overdeterminations cannot be
attributed to the intended actions of individ-
uals. As Pierre Nora (1989, pp. 11–12) put it,
historians had abandoned the “‘epideictic’ or
juridical mode of history which ascribes praise
or blame and are concerned with long-term
social change.” Furthermore, the narrative
283
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frameworks of criminal law impose a specific,
often problematic, structure on the way history
is interpreted ( Jackson 1989). The indictment
at Nuremberg, for example, referred to crimes
against humanity undertaken in the prepara-
tion and pursuit of aggressive war. This made
the trial “historically suspect” by “translat[ing]
Nazi crimes into an idiom familiar to law,
and enlist[ing] the evidence of such atrocities
into an argument about renegade militarism”
(Douglas 2001, p. 533). Trials freeze a part
of history, zoom in on and enlarge it, per-
sonalizing long and bitter conflict around a
few individuals. The inevitable focusing on a
few defendants further distorts the historical
record. Similar problems were created by
the “conspiracy to wage war” count of the
indictment, otherwise a neat technique in a
difficult legal environment.
After Nuremberg and Tokyo, historiogra-
phy concentrated on the acts and intentions
of leaders influenced by the legal record. A
conspiracy view of history prevailed, accord-
ing to which a few German and Japanese psy-
chopathic criminals plotted in detail the war
and its atrocities. The highly emotional debate
about the smoking gun for the final solution,
which has dominated scholarship and the trials
of the Holocaust deniers, is a direct outcome
of this legalization of history. Historians began
to abandon this approach only quite recently
and turned instead to questions about the so-
cial, institutional, and structural forces at work
in Nazi Germany and, crucially, the participa-
tion or tolerance of ordinary Germans in the
atrocities of the regime (Goldhagen 1997).
The same happened at the trial of the
Vichy official Maurice Papon (Goslan 2000).
The central legal question was whether Papon
was aware of the final solution and sent the
Jewish deportees to the gas chambers knowing
their certain fate. Historians were called by
prosecution and defense to give evidence
about the knowledge of a single official
(Wood 1999, ch. 5). The need to prove the
defendant’s knowledge and intention seriously
derailed a trial that was seen as a moment of
catharsis for France.
284 Douzinas
The presuppositions and procedures of law
have permanently affected the historical record.
According to Dan Diner (1997, p. 307), the
debate between those who adopt a functionalist
approach to liability and argue for a “guiltless
guilt,” on one hand, and “intentionalist”
historians who see mass crimes as culpable
action, on the other, has turned into a conflict
between two “judicially shaped structures of
narration with opposing orientation.” German
histories and memories tend to foreground the
circumstances leading to the genocide; Jewish
memories are concerned with the motives
that informed it, whereas those without direct
links with the genocide tend to universalize its
meaning (p. 309). But the law necessarily sides
with the intentionalist argument, as it searches
for linear causation and individual culpability.
The answer to difficult and crucial historical
problems is given by the legal framing of the
question.
A similar difficulty is encountered when tri-
als are approached, as by Felman, as opportuni-
ties for the recollection of traumatic events and
as official confirmation of collective memories.
How can the law encounter individual trauma?
Two opposed theories and methods deal with
the reception, interpretation and evaluation
of traumatic testimony. The broadly Freudian
theory believes that we cannot evade the exis-
tential power of the past. Freud’s contribution
to mnemonics is the belief that the unconscious
retains memories that have been removed from
conscious recollection (Freud 2002, pp. 45–52).
Memory loss does not result from the passage of
time but from unconscious barriers erected in
order to repress painful memories. The uncon-
scious as the guardian of memory selects what is
to be remembered and hides the rest. Conscious
memories screen the unpleasant past, they are
benign and nostalgic fantasies in which the
unconscious glosses over the past once the trau-
matic experience has been consigned to obliv-
ion. But these forgetful screen memories, which
ward off intense painful experiences, should be
viewed with suspicion as records of past events.
Repressed memories return not as narratives
but in the form of symptoms of psychosomatic
 LS08CH14-Douzinas ARI 28 September 2012 13:35
disturbance, dreams, slips of the tongue, and
parapraxes. Such symptoms can be understood
by psychoanalytical therapy not by the rational
organization of legal proceedings. The selec-
tion of narrative mode, the emplotment of
facts, and the building of memories can neither
convey nor defend us from the inexpressible
traumatic core. Telling stories is a palliative,
and nothing assures us that it soothes rather
than aggravates the trauma.
Collective-memory historians, by contrast,
believe that the present and past coexist. The
story of the past is always told from the perspec-
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tive of the present; it is remembered through
contemporary cultural frames and priorities. If
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memory is provisional, as collective-memory
studies believe, it can always change to good
effect. Nora’s postmodern “sites of memory”
allow creative (or manipulative) reconstruction
of history from the perspective of the present.
For the Freudians, present memories are an-
chored in a traumatic past, which can only be
repeated outside the psychoanalytical context.
For collective-memory studies, the present de-
termines the past; for Freudians, the past haunts
the present. For the former, the uses of his-
tory are temporal; for the latter, spatial. The
two approaches are irreconcilable, and neither
helps legal probity or historical truth (Hutton
1994).
Caught between the opposing approaches,
the law rationalizes the past, reconfigures it as
appropriate to current and future needs, em-
plots it as relevant to present classifications and
future expectations. All memory, of course, is
selective. Law’s memory is policed through de-
vices which, as we saw, minimize ambiguity
both forward and backward. It constructs an un-
ambiguous future to which it aspires and a con-
sistent past, which it claims to redress. The past
is oriented to the present; its recovery follows
present needs and is tailored to future aspira-
tions. Legal memory and techniques prestruc-
ture our access to the past, and law’s consistency
selects from the past what is preselected in the
present.
Let us examine this process by briefly
looking at the proceedings of the TRC in
www.annualreviews.org • History Trials: Can Law Decide History?
South Africa. Established in 1995 to examine
gross violations of human rights committed
between 1960 and 1993, the TRC recorded the
atrocities of the past, narrated directly by their
perpetrators and victims [Promotion of National
Unity and Reconciliation Act 1995 (South Africa),
Article 3(1)(a),(b)]. Public confessions by
perpetrators entitled them to immunity from
prosecution and aimed to restore the dignity of
the victims [Reconciliation Act, Article 3(1)(b)],
and the testimony of victims was intended to
act as a healing process. The assumption was
that the telling of stories would construct a
collective memory of the past, as the necessary
prerequisite for the creation of the new com-
munity cleansed of its sins. It was a negotiation
between past and future or between justice and
nation building. But collective memory arises
within frameworks that emphasize current and,
in constitutional moments, future priorities,
and it controls the relationship between mem-
ory and forgetting. The law imposes criteria
of memory selection, forgetting both what it
leaves out and that it left it out.
The most obvious forgetting was that of the
structural violence against blacks, which per-
vaded all aspects of apartheid South Africa.
The TRC “forgot” the racial nature of the ob-
scene economic and social inequality. Although
racial segregation was attacked, the class seg-
regation of the townships and the urban un-
derclass, which splits society along the same
racial lines today as under apartheid, was for-
gotten and survived intact. This forgetting of
the crimes of racialized capitalism was extended
to the more legalized process of amnesties. The
legal requirement of neutrality toward the two
parties meant that the leaders of the apartheid
and of the liberation movement were treated
in the same way, as if legal neutrality could re-
deem the horrors of the past. The law will say,
“It was a great tragedy, how horrible. We will
say never again, we now respect human rights
and that’s it. It has been taken care of.” But this
is a betrayal of the past, and the new nation is
founded on this betrayal.
It is only law’s decisionism that creates the
expectation that a commission or a trial will lead
285
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to reconciliation through its work of rules and
procedures about what can be remembered, and
how, and what should be forgotten. The trick,
the method, is to read the past through the
modality of a future anterior state, the Good
Friday Agreement3 that will have been. No
other conflict is represented nor violence recog-
nized except from that which the future com-
munity has acknowledged and then projected
back to its past in order to cleanse it. One kind of
violence becomes validated—it is the violence
proper with which we have to deal; the oth-
ers are forgotten—we remember gross human
rights violations in South Africa but not vio-
lence against women or the violence of racial-
ized capitalism. In its urge to generalize and
subsume the unique under the generality of the
norm and the abstraction of the concept, the
singularity of memory and the uniqueness of
the responsibility to the other becomes invisi-
ble. Finally, law’s memory forgets the immemo-
rial, that which questions community and its
legitimacy. All that resists this recollection is
rejected, forgotten; and the act of forgetting is
forgotten, too.
We can conclude that history trials impose
law’s interpretative framework upon the past,
weakening claims about the redemptive power
of recollection. What is not available to con-
sciousness cannot be articulated in the highly
technical legal language. Asked to pass verdict
on the unconscious trauma, the law reenacts it.
Law’s conscious and rational foundations per-
form what cannot be put into legal language by
compulsive legal repetition. The main didactic
paradigm of history trials, therefore, has been
the creation and certification of a collective
memory narrated from the perspective of the le-
gal framework. Emilios Christodoulidis is quite
right when he writes that collecting some mem-
ories does not lead to the creation of a collective
memory (Christodoulidis & Veitch 2001).
3
This was the agreement signed in Belfast on April 10, 1998
(Good Friday), between the British and Irish governments
and between the Northern Irish political parties. It was a
major step in the Northern Irish peace process, which led to
the end of the sectarian troubles in the province.
286 Douzinas
Indeed collective memory is as spurious a
notion as collective guilt. As Susan Sontag
(2003, pp. 85–86) puts it, “collective memory
is a stipulating, that this is important, this is
how it happened with the pictures that lock
the story into our mind. Ideologies create sub-
stantiating archives of images, representative
images, which encapsulate common ideas of
significance and trigger predictable thoughts,
feelings.” If collective-memory studies were an
important contributory factor to the current
malaise of historiography, they cannot become
the cure to the disease they have helped create.
TRIALS AS SITES OF MEMORY
Lawrence Douglas’s (2001, n.32) periodization
of the Holocaust trials can be generalized. His-
tory trials have become increasingly academic
exercises, losing their active link with memory.
The perpetrators and victims were still alive
during the Nuremberg and Eichmann trials.
The documentary evidence and testimony they
offered entered the consciousness of people
directly and indirectly affected by them. In
this sense, they were, in Nora’s (1999, p. 1)
terms, “environments” (milieux) of memory,
“settings in which memory is a real part of
everyday experience.” But progressively, these
trials have turned from “environments” into
“sites” (lieux) of memory. Sites of memory
“arise out of a feeling that there is no such
thing as spontaneous memory, hence that we
must create archives, mark the anniversaries,
organize celebrations, pronounce eulogies, and
authenticate documents because such things
no longer happen as a matter of course. . . .
[W]ithout commemorative vigilance, history
would soon sweep away. . . . [A]s traditional
memory has vanished, we have felt called upon
to accumulate fragments, reports, documents,
images and speeches—any tangible sign of
what was—as if this expanding dossier might
some day be subpoenaed as evidence before
who knows what tribunal of history” (pp. 7, 9).
Artificial or symbolic substitutes replace what
previous societies took for granted, but this is
the form only, not the substance of history. And
we know the tribunal of history: it has moved
 LS08CH14-Douzinas ARI 28 September 2012 13:35
from philosophical and soteriological treatises
to the court chamber. An extensive record is
produced in the court, but these traces of a dis-
connected past, found in testimonies, archives,
and documents, confirm the melancholy recog-
nition that the past has lost its sacred nature and
memory its foundational power. The selected
and policed recollections are no longer the nat-
ural activities of memory, and this destruction
of memory is associated with “the imperative
of the age not only to keep everything, preserve
every sign[,]. . .but also to fill archives. . .. The
commandment of the hour is ‘Thou Shalt Re-
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member’” (pp. 9, 11). Sanctified and authorized
by law’s authority, the legal-historical record
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claims a (simulated) part of history’s aura and
aims to act therapeutically in societies that
have lost for good their anchoring in the past.
This legalization of history and memory
must be attributed to the galloping amnesia
of late modern societies and the changing
function of law. Historical and commem-
orative narratives anchored nations in an
imagined past and legitimized state power.
But now history has lost its authority and
pedagogical mission. Similarly, collective
memory can no longer draw its force from
a continuous past and gives way to the indi-
vidual psychology of recollection and trauma.
These epochal changes have affected the way
we conceive time. The historians of nation
placed emphasis on the past; the lawyers, on the
future. Revolutions, inventions, and discover-
ies, singular events that redirect history became
the end points of the past and the falcons of the
future. They were consolidated in constitu-
tions and declarations, which shaped the past
according to the expectations of the future. But
now the future has become problematic and
the past unpredictable. Late modernism needs
no grand narrative other than the continuous
reaffirmation of the present, as the future
utopia is displaced by the present dystopia.
DISCLOSURE STATEMENT
The author is not aware of any affiliations, memberships, funding, or financial holdings that might
be perceived as affecting the objectivity of this review.
www.annualreviews.org • History Trials: Can Law Decide History?
Lacking a unifying methodology, a clear
mission, and an undisputed record, history
becomes juridical and categorical. In this
sense, law becomes the cure of failed memory,
a kind of group analysis for amnesiacs. But
law’s temporal horizon is no longer that of
the future, and its interest in the past comes
from a flat, empty time that has accelerated
Benjamin’s critique of modern temporality.
Law abandoned the perspective of the future at
the same time that history dissolved into col-
lecting memories. Law’s assumption of the role
of historical umpire is an attempt to reinvest
history with a definitive and authoritative story
after the demise of the national sagas and with
a modicum of (simulated) sacredness. History
trials are the sovereign’s justice of which
victors’ justice is only one instance, a technique
for impressing on the world an approved
version of history that promotes sovereign
ends.
Ernst Bloch said that “history displays its
Scotland Yard badge” (quoted in Benjamin
1999a, p. 463). Now the badge has passed to
where it belongs. For Benjamin, the history that
showed things “as they really were [was] the
strongest narcotic of the century” (Benjamin
1999a, p. 463). Now the law tells us not only
“how things really were” but also that there is
only one reality. If history was the strongest
narcotic, now the law turns into a superdrug.
Henceforth law alone will have to bear the re-
sponsibility of affirming the truth of the past.
As in all legal judgment, this truth shall be one.
We can conclude that history trials are con-
ducted on an unhappy border. It is indeed a
question of borders: the border between past
and future; the border between the state and its
neighbors and enemies; the border between law
and justice; and, finally, the border between the
state, every state with its violence, and the call
to judgment in the tribunal of history, which
cannot be delivered in courts of law.
287
 LS08CH14-Douzinas ARI 28 September 2012 13:35

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 LS08-Frontmatter ARI 5 October 2012 12:49

Annual Review of
Law and Social
Science

Contents Volume 8, 2012

Legacies of Legal Realism: The Sociology of Criminal Law and

Criminal Justice
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Regulating Sex Work: Heterogeneity in Legal Strategies

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International Human Rights Law and Social Movements: States’

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