This article explores the ethical consequences of the seemingly benign suggestion that the retelling of an event of state sponsored violence through the protocols of the law can provide a lesson/forum for fostering “discursive solidarity.” Focusing on the example of post‐dictatorship Argentina, the apparent pedagogical soundness of transmitting the traumatic event through legal commemoration will be complicated by considering how the law is employed as a mechanism for bracketing divisive memories and affects that interrupt the coherence of the national imaginary. (...) Underlining these issues will be a concern with the difficulty of historicizing abject affections, of interpreting and transmitting post‐traumatic rage through the intertextual web of normative allusions. The discussion grapples not only with the political/practical consequences of attempting to absorb and transmit (hermeneutically) the disavowed affects of a social traumatic event, but also speculatively gestures us to consider another sense of justice: one that provides the impetus to confront how we are obligated before that which is lost through our terms.1. (shrink)

Although forgiveness is often taken to bear a close connection to the value of reconciliation, there is a good deal of scepticism about its role in situations where there is no consensus on the moral complexion of the past and no admission of guilt on the part of the perpetrator. This scepticism is typically rooted in the claims that forgiveness without perpetrator acknowledgement aggravates the risk of recidivism; yields a substandard and morally compromised form of political accommodation; and comes across (...) as patronizing and offensive to the recipient, thereby causing further alienation. In this article, my aim is to show, firstly, that none of these arguments is decisive and, secondly, that forgiveness is a suitable object of political concern in the absence of cross-community consensus on the rights and wrongs of a conflict. In this way, I aim to demonstrate that forgiveness deserves to be taken seriously as a means to civic reconciliation in a broader range of situations than many have allowed. (shrink)

This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's approach, (...) and (4) Alexy's case for the "Radbruch formula": that "extreme injustice is not law”. While rejecting both versions of the case for legal idealism, I argue that both schools offer vaulable, and broadly similar, insights into what makes a legal system morally legitimate. (shrink)

This article focuses on the most recent debates in a certain area of the ‘law and emotion’ field, namely the literature on the role of affect in the criminal law. Following the dominance of cognitivism in the philosophy of emotions, authors moved away from seeing emotions as contaminations on reason and examined how affective reactions could be accommodated within penal proceedings. The review is structured into two main components. I look first at contributions about the multi-dimensional presence of emotions within (...) ordinary criminal proceedings. Second, I examine work done on the use of criminal trials under the emotionally stressful circumstances of post-conflict societies. In the conclusion I sketch a theoretical proposal for moving the discussion forward. (shrink)

In the lexicon of rights, the concept ofhumanrights can play a wide variety of roles. Human rights can be defined as substantive natural rights that transcend politics and culture or as the rights that underlie political and cultural differences. They can be defined narrowly as rights that could be asserted against enemies in war or, more broadly, as the aspirational goals to which governments are held accountable by their citizens and the world. Despite their lack of recognition in covenant and (...) positive law through much of the twentieth century, human rights are increasingly asserted on the basis of such recognition. To some, human rights are simply the sine qua non (procedural? biological?) for asserting other rights, whatever these may be. In this paper I do not choose among these uses of the concept of human rights by propounding a single definition; neither do I defend or criticize human rights in general. (shrink)

The present paper examines certain salient features of the his tory-memory-identity relation. The common feature underpinning most contemporary manifestations of the memory craze seems to be an insecurity about identity, an insecurity that generates an excessive pre occupation with 'memory'. In the face of memory's valorization, what should be the attitude of the historian? At the present moment there is a pathetic and sometimes tragic conflict between what 'memory' expresses and confirms, namely, the demands made by subjectivities, and the demand, (...) essential to any scientific discipline, for proof. The paper explores this conflict and argues that neither term can be reduced to the other. It suggests that one needs to conceptualize the field of history as involving inevitable limits to historical knowledge, such that both history and memory are seen as inadequate. In this way one avoids both the arrogance of a would-be definitive history and the 'arrogance of authenticity' that all too often accompanies claims for memory. (shrink)

Instrumentalism about moral compromise in politics appears inconsistent with accepting both the existence of non-instrumental or principled reasons for moral compromise in close personal friendships and a rich ideal of civic friendship. Using a robust conception of political reconciliation during democratic transitions as an example of civic friendship, I argue that all three claims are compatible. Spouses have principled reasons for compromise because they commit to sharing responsibility for their joint success as partners in life, and not because their relationship (...) involves strong affective attitudes of goodwill, solidarity, trust, and the like. Since shared responsibility for ends is an inappropriate element in the political relationship between citizens, the members of a divided society may manifest the constitutive attitudes of political reconciliation without any commitment to principled reasons for moral compromise. (shrink)

Tarot cards are one means to unlocking an image. In this article, the image is that of the Albanian writer and political dissident Musine Kokalari at her 1946 trial. Her photograph features in Albanian discourses about its communist past. I argue that the image provides clues as to the manner in which the country has faced up to its own history. For what is certain is that the Albanian account of the Enver Hoxha dictatorship remains incomplete. Drawing on Walter Benjamin’s (...) notion of ‘here-and-now in a flash’, and Roland Barthes’ and Italo Calvino’s reflections on photography and the power of the visual, we can identify at least two distinct memory regimes in the relevant historical, legal and political narratives. (shrink)