Law and memory : the unobvious relationship

Sadowski, Mirosław M. (2018) Law and memory : the unobvious relationship. Warsaw University Law Review, 17. pp. 262-290. (https://doi.org/10.26330/ppuw.2017.02.04)

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Abstract

Despite the fact that we are living in the times of ‘hypertrophy of memory’ or ‘memory boom’, many legal scholars has so far tried to ignore the numerous ties between law and memory. These ties, however, do exist, and some researchers even suggest that law is perpetually in search of the past, while others say that memory is one of the cornerstones of law. The purpose of this article is to investigate the unobvious, but extremely potent relationship between law and memory. In the first part of this paper, the author briefly introduces the notions of collective memory and cultural trauma, which connect law and memory. The second part of the article is devoted to the concept of ‘law as memory’, which is mainly based on Henri Bergson’s and Emmanuel Levinas’ concepts. In the third part of the article, the author shows the intersections between collective memory and law, exemplifying how collective memories may be shaped by law, and vice versa, how law may be shaped by collective memories. The fourth part of the paper is dedicated to the close bonds between collective memory and international law, and between human rights law and memory. The author first analyses the workings of the relationship of memory with the international law, showing how they both influence each other, and giving some recent examples of the intersections of international law and collective memory, e.g. Germany’s response to the Eurozone crisis and Argentina’s reaction towards the ICSID’s awards. Then he focuses on the liaison between memory and human rights law, explaining how memory ‘stands behind’ human rights in the modern era. In the last part of the article, the author ventures to sum up his deliberations, and tries to answer one of the questions of the 21st century – whether there is a right to memory.

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