Reviewed by David Fraser, School of Law, University of Nottingham. Email: David.Fraser [at] nottingham.ac.uk
Memory studies as a field of academic inquiry has come a long way in a short period of time (Olnick and Robbins, 1998). There is an eponymous journal and literature searches reveal thousands of entries under the “collective memory” rubric in a number of disparate disciplines. One might ask what the Savelsberg and King volume has to offer to what is already an arguably saturated field. The answer, in brief, is quite a lot. The authors bring a methodological rigor to their sociological study of atrocities, collective memory and law which makes a significant and important contribution to scholarship.
While they are quick to acknowledge their debts to the intellectual origins of the idea of collective memory in the Durkheimian approach of Maurice Halbwachs (1992) and to recent interventions in political theory on the social benefits to be derived from the trial of perpetrators of atrocities (Sikkink, 2011), Savelsberg and King do not uncritically accept or deploy an overarching and pre-determined one-dimensional theoretical frame despite having a very targeted aim for their work. They set out to explore the relationships, both positive and negative, between law and collective memory in the area of mass atrocities and violations of human rights. They bring an empirically informed sociological approach to a field in which both historians and legal scholars (Karstedt, 2009) have toiled for some time. “Yet much more empirical work is needed if we want to more safely answer the two questions at hand: First, do trials in fact affect historical narratives? And, second, does memory indeed influence state responses to conflict?” (p.10)
They set out their impressive attempt to answer these two core inquiries by examining a number of cases. After clarifying their critical engagement with relevant theoretical perspectives, from sociology, political science, history and law in the first parts of the book (Chapters 1 and 2), they proceed to the core of the work. They offer empirical studies of the reception of the My Lai massacre in law, media and most interestingly in the representation of the “case” in history textbooks (Chapter 3 and Appendix A). They compare and contrast the place of My Lai and Viet Nam in American collective memory with the portrayal and reception of the killing of Iraqi civilians by American troops in Haditha (Chapter 4), before a detailed study of the case of Slobodan Milosevic. Here they focus on the different and differing roles played by media portrayals, diplomatic practice and discourse and ultimately law in the construction of the place of the wars in the former Yugoslavia in American public memory (Chapter 5 and Appendix B). [*271]
Savelsberg and King then turn to an in-depth comparison of the social and legal factors which determine the shape and content of public memory in the United States and Germany (Chapter 6), a comparison to which they return with a focus on collective memory and hate crime legislation and prosecution in the two countries (Chapter 8). Chapter 9 offers a detailed consideration of the ways in which collective memory is brought to bear in public and legal debates over the implementation of hate crime legislation in the US. Their careful engagement with law and legal process as they shape, for better or worse, collective memory in the struggle for justice is most fully evidenced in their “Theoretical Interlude” in Chapter 7 and in the conclusions found in Chapter 10. This brief summary of the book’s contents offers a glimpse into the methodological sophistication of the authors’ efforts to come to grips with broad and diverse fields of inquiry.
Savelsberg and King are constantly at pains to draw conclusions or to identify areas for future inquiry, with empirical rigor and analytical subtlety. If their focus is on trials which have targeted perpetrators from the IMT at Nuremberg to Lieutenant Calley in the My Lai case, to Slobodan Milosevic in the Hague, they are meticulous in adopting an approach which differentiates between and among 1) trials involving high-ranking officials and those involving lower-level perpetrators, 2) trials which take place in domestic or international fora, and 3) trials which take place with or without regime change (Chapter 10). Each of these factors is then balanced in a complex analysis of the ways in which collective memories are formed within the legal processes and in which, conversely, collective memory shapes the trials themselves, all in an intellectually coherent attempt to offer an empirically informed response to the two primary questions at the heart of the book. While they clearly reject any rose-colored answers to the intertwined fates of law and collective memory, Savelsberg and King do conclude that the intersection of collective memory and law can have positive effects on bringing perpetrators to justice and on the future evolution of a post-conflict human rights culture.
This is an important book which fills a gap in collective memory studies dealing with atrocities and legal responses to those gross violations. At the same time however, it is perhaps as important for the approaches and responses it abjures or elides as for those it embraces. As the title indicates, the book, despite its recourse to comparisons with the German situation, is about American memories. The authors offer justifications which are on their face convincing – the United States is a large, important and powerful nation state. Moreover, “… how the United States conducts its business has ramifications far beyond its national borders” (p.11). Memories, they argue, transcend national boundaries in any event. The transcendent importance of human rights, as Blustein (2012) has recently asserted, means for many that collective memory has become “internationalized”.
The authors emphasize this international role of American memory formation in their discussion of the Milosevic case in particular (Chapter 5). There can be little doubt that the United States played a key part in diplomatic efforts to end the Yugolsav conflicts and in bringing Milosevic before the Tribunal in The [*272] Hague. Even if we are to accept at face value the argument advanced by Savelsberg and King that American memories count not just in the United States but in the creation of a broader international memory of atrocity and law, what we must also accept is that American memory suffers here from a bout of historical, sociological and legal amnesia. The experience of the International Criminal Tribunal for the Former Yugolavia, as well as its cousins established for Rwanda and Sierra Leone, led directly to the establishment of the permanent International Criminal Court, a jurisdiction of collective memory formation which the United States firmly rejects, and which receives only passing mention in this book.
I am not suggesting here that the authors are among those who seek to enforce an American exceptionalism with which to deny the legitimacy of the ICC. Indeed the emphasis throughout the book lies in the other direction, asserting that the best of the United States experience reflects and is reflected in the international context of the prosecution of perpetrators. The book cannot deal with every issue arising from the complex connections between collective memory and law. Instead what it succeeds in doing, beyond its own strict textual limits, is to stimulate and provoke thoughts, ideas and areas for future and further study. Among those is the issue of the exact position of American collective memory and legal practice in the international arena or in other national jurisdictions. We have an American perspective on the significance of the American experience in the international arena; other perspectives on the question await. A comparison of collective memory formation and judicial phenomena in the various nations of the former Yugoslavia would perhaps offer a different or more subtle understanding of the American Milosevic experience and its transnational significance.
Perhaps the most important area in which the work of Savelsberg and King leads to future and further interrogation is their discussion of the social groups which are the bearers of collective memory. As sociologists they are acutely aware of the contested political, social, cultural and legal terrain in which collective memories are constructed and from which battles over “justice”, legitimation and the ultimately juristic embodiments of these collective memories emerge. Their American-German comparison is a classic example of how differences in historically informed civil society formations can and do have direct impacts on the collective memory/law dynamic (Chapter 8). Other examples do exist and await further detailed examination on a number of interrelated issues which arise from the arguments put forward in this book.
One might examine the question of whether there is in fact an international collective memory of “human rights”. Recent and ongoing experience in Europe points to the near impossibility of establishing an idea or an ideal of a single European memory in the complex contexts involving the shadows of the Shoah, Communism and post-Communist transitions, or those from totalitarian regimes of the right, ethnic and national divisions, the problematic questions arising from a “Muslim presence”. . Debates in a number of European countries involving collective memory and law surface on a regular basis, offering at least an initial empirical indication that any ideal of an [*273] international collective memory informed by a human rights legal paradigm coming from the American or mirroring that experience is far from being a concrete reality.
In addition, one might also begin to carefully examine the goals and ambitions of the social actors who are engaged as carriers of collective memory in both the political and legal domains. One of the weaknesses of law, recognized by Savelsberg and King, is that the trial process itself must focus on a determinate outcome informed by a narrow guilty/not guilty nexus. This frame is often too limited to achieve many of the goals of those groups making claims over collective memory. While they do not completely ignore other “legal” realms in their study, the authors do perhaps invest an overly Americanized importance in trials as the central legal instrument through which collective memory is concretized and which is in turn informed by collective memory. For example, a series of debates over collective memory and law has emerged in France over recent years. The debates involve memories and collective “legal” responses to the Shoah, the French legacies of slavery and colonialism, and most recently, the recognition of the killing of Armenians by the Turks. Most of these controversies and collective memory struggles have occurred in realms other than the judicial (Fraser, 2011).
The French case could be instructive because the debates over so-called memorial laws involve a number of legislative embodiments, ranging from a simple symbolic recognition of past suffering by the Parliament to the criminalization of speech denying past genocides and atrocities. Thus a study of “French memory” could reveal not just the variety of legal methods available to concretize collective memories, but the ways in which different carrier groups insist on the legal recognition of “their” suffering. Such a study would complete or carry on Savelsberg’s and King’s impressive effort but advance the debates by bringing yet more empirical context to the examination of the sociology, history and jurisprudence of collective memory and atrocity. It could also open up the field to a more nuanced interrogation of the goals of these carrier groups which can manifest themselves in the struggle for legal recognition in objectives ranging from a simple competition for a single hegemonic collective memory (Chaumont, 1997) or more subtly in a complex matrix of “multidirectional memory” (Rothberg, 2009).
Finally, a further methodological refinement might be suggested for future study informed by Savelsberg’s and King’s groundbreaking work. Collective memories and legal renderings of collective memories come to us from a number of social phenomena and sources. Likewise a number of disciplinary perspectives can inform our analyses of law and collective memory. Philosophy (Ricoeur, 2004) and social history and the history of thought (Horsman, 2011) can offer insights and frames of analysis which would supplement in a fruitful fashion the sociological studies of textbooks, diplomacy and media presented by Savelsberg and King. For the study of law and collective memories, a heterogeneous methodology borrowing from both the social sciences and the humanities, with the appropriate rigor and as subtly exemplified in American [*274] Memories, is perhaps the best way forward.
Blustein, Jeffrey. 2012. “Human Rights and the Internationalization of Memory.” Journal of Social Philosophy 43(1): 19-32
Chaumont, Jean-Michel. 1997. La Concurrence des Victimes: Génocide, identité, reconnaissance. Paris: La Découverte.
Fraser, David. 2011. “Law’s Holocaust Denial: State, Memory, Legality,” in Hennebel, Ludovic and Thomas Hochmann (eds), Genocide Denials and the Law. Oxford: Oxford University Press. pp.3-48.Halbwechs, Maurice. 1992. On Collective Memory. Chicago: University of Chicago Press.
Horsman, Yasco. 2011. Theaters of Justice: Judging, Staging, and Working Through in Arendt, Brecht, and Delbo. Palo Alto: Stanford University Press.Karstedt, Susanne (ed). 2009. Legal Institutions and Collective Memories. Oxford: Hart Publishing.
Olnick, Jeffrey K. and Joyce Robbins. 1998. “Social Memory Studies: From “Collective Memory” to the Historical Sociology of Mnemonic Practices.” Annual Review of Sociology 24: 105-40.Ricoeur, Paul. 2004. Memory, History, Forgetting. Chicago: University of Chicago Press.
Rothberg, Michael. 2009. Multidirectional Memory: Remembering the Holocaust in the Age of Decolonization. Palo Alto: Stanford University Press.Sikkink, Kathryn. 2011. The Justice Cascade. New York: W.W. Norton.
Copyright by the Author, David Fraser.