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The Wounds of History and Restorative Justice: An Historical and Comparative Analysis

Abstract

Is the law of torts an adequate means to redress the wounds of history? May the introduction of ‘memorial laws' be beneficial? Which legal treatments different national systems give to the phenomenon of ‘negationism'? Does a ‘right to memory' exist and, if it does, who is entitled to claim it and what procedures are available?

Increasingly the law is invoked to face the problem of redressing the consequences of adverse historical events (this was the topic of a well-known conference organized by the French Cour de Cassation in 2007). Few months ago the Italian Corte di Cassazione sentenced the Federal Republic of Germany, jointly with sergeant Max Josef Milde, to compensate the relatives of nine victims of Nazi mass murder of Civitella (29th June 1944) for moral damages. Germany appealed against this decision before the International Court of Justice. There is a heated debate on this decision, although it is not an isolated case: a comparative approach shows that there is a huge resort to law of torts as a means to redress the wound of history, e.g. class actions against Swiss banks for misappropriation of funds due toHolocaust victims, actions concerning slavery etc. (Garapon A., Peut-on réparer l'histoire ? Colonisation, esclavage, Shoah, Paris, 2008).Moreover the topic ‘law and memory' has grown in recent years. For instance in Europe there has been a flood of ‘memorial laws': this concept refers to a corpus of provisions intended to define an official version of certain historic events, protect their memory and spread knowledge of them throughout the community. The aim of these tools is to help defining a common identity and counter the phenomenon of negationism. Nevertheless this approach raises many questions: to what extent can the principles of freedom of expression and freedom of historical research be rightfully limited? How can historical events worthy of a ‘protected memory' be selected without incurring the risk of arbitrary or even of reverse discrimination? Comparative analysis shows that there are models different from those emerging in the European context (e.g., the approach adopted by the US Supreme Court) and this situation should lead to a careful consideration about advantages and dangers of the phenomenon of the ‘jurisdictionalisation of memory'. Historians have intensely debated on this topic for a long time. One of the main typical dilemmas concerns the ‘public use' of history. From Bloch (Bloch M., 1969) up to today the debate on this topic has not faded. Recently international organizations and national judiciaries have expressed their intention to treat the injuries left open by history. For this reason the reflection upon history and the role of historians in reconciliation processes is highly debated.

The research project aims at combining comparative law and history of law approaches to conduct an exhaustive analysis of the relationships between law and memory. This research will involve also philosophers and sociologists of law and will focus principally on the following issues:

a) How to repair the injustices of history: compensation, reparation, indemnification;

b) How to discuss the past: memorial laws and freedom of expression;

c) How to confront with the past: the truth of the historian and history through law;

d) How to re-appropriate the past: the post-colonial experience and the right to memory.


Aims of the research project:

The research project has three principal aims:

1) First of all the project aims at providing a significant contribution to the theoretical reflection on tort law and fundamental rights, moving the angle of observation from the phenomenon of mass torts (widely studied) to that of mass crimes (so far scarcely studied in depth by private law scholars). The essential question on which the study will concentrate is that of the prerequisites and of the conditions of admissibility of compensatory actions in the hypotheses of "injustices of history". More specifically, the following profiles will be examined: a) who has legal standing as plaintiff; b) who would be the defendant; c) in which cases; d) for which type of damages; e) according to which procedures.

 

2) In the second stage, the project aims at realising a comparative study on the problem of the relation between memorial laws and freedom of expression, with the scope of evaluating the prerequisites of public regulation of speech on the past. In particular, the issue of negationism will be deepened, and a comparison of the solutions adopted at international level as well as a discussion on the possible reforms of national law will be conducted.

 

3) In the third stage, and in broader terms, an interdisciplinary reflection on the problem of the "jurisdictionalisation of memory" will be proposed. The aim is that of confronting the perspectives of the historian with those of the positive lawyer with regard to the problem of the relation with the past, while questioning the relation between historical truth and history through law.

The research project will concentrate on four main themes:

a) how to repair the injustices of history: compensation, reparation, indemnity;

b) how to discuss the past: memorial laws and freedom of expression,

c) how to confront with the past: the truth of the historian and history through law;

d) how to re-appropriate the past: the post-colonial experience and the "right to memory".

The issues sub a) and sub b) will be treated by the Research Units of the Universities of Roma Tre and Bari, coordinated by experts in legal comparison. The issues sub c) and sub d) will be treated respectively by the Research Units of the universities of Naples and Lecce, composed by historians and legal philosophers.

The project will have the following temporal division:

i) During the first year the attention will focus on the problem of the jurisdictionalisation of memory. During this phase two principal research themes will be treated: on the one side a comparative analysis of the phenomenon of laws ON memory in the experience of continental Europe will be proposed, and on the other side the emblematic case of the right TO memory of indigenous populations (given the Universal Declaration of 2007) will be deepened. The reflection will conduct to a joint seminar on the theme "Rights and rules of memory: the legal construction of history".

 

ii) During the second year, the research will focus on the models of reparation for prejudices of history. In the first place a cross-sector study of come emblematic hypothesis, which have repeatedly been the object of case law- from the controversies related to war crimes, to the compensatory actions proposed by descendants of slaves, to the actions proposed by native Americans- will be conducted. In the second place the institutional alternatives to compensation of damages (i.e. systems of indemnity, non-patrimonial reparations, truth and reconciliation commissions etc.) will be studied. Finally - in an ad hoc seminar- the issue of which are the respective tasks of the historian and the legal scholar in relation to the problem of the ascertainment of historical events that are source of damage and reparation will be questioned

 

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