Law and Memory: Between Normativity and Reality

We propose a typology of normative practices underlying memory laws. On the one end of the spectrum are laws that seek to enforce a type of ‘ruthless forgetting’, a theme explored by Nietzsche in some of his early writings. These laws are characteristically associated with autocracies and totalitarian regimes and are nakedly instrumentalist, designed to secure specific political outcomes. At the opposite end is the archetypal or ideal type of remembering (and forgetting) associated with democratic legal systems founded on the rule of law and human rights: we call this enlightened remembering. Enlightened remembering is motivated by what Fuller calls the ‘morality of aspiration’, seeking to construct the past in ways that best serves the demands of justice and the rule of law. Less explored is the terrain that lies in between these two ends of the spectrum. Here we pay close attention to Bernhard Schlink’s writings on forgetting borne out of exhaustion (Erschöpfung). Drawing on historical examples and works of literature, we consider the extent to which exhaustion with the past, leading to a need for Vergangenheitsbewältigung, explains the real motivation behind at least some forms of memory laws.