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The legal system depends upon memory function in a number of critical ways, including the memories of victims, the memories of individuals who witness crimes or other critical events, the memories of investigators, lawyers, and judges engaged in the legal process, and the memories of jurors. How well memory works, how accurate it is, how it is affected by various aspects of the criminal justice system — these are all important questions. But there are others as well: Can we tell when someone is reporting an accurate memory? Can we distinguish a true memory from a false one? Can memories be selectively enhanced, or erased? Are memories altered by emotion, by stress, by drugs? These questions and more are addressed by Memory and Law, which aims to present the current state of knowledge among cognitive and neural scientists about memory as applied to the law.
The volume revisits memory laws as a phenomenon of global law, transitional justice, historical narratives and claims for historical truth. It will appeal to those interested in the conflict between legal governance of memory with values of democratic citizenship, political pluralism, and fundamental rights.
A major contribution to our understanding of present-day historical consciousness through a study of memory laws across Europe.
Law and the Politics of Memory: Confronting the Past examines law’s role as a tool of memory politics in the efforts of contemporary societies to work through the traumas of their past. Using the examples of French colonialism and Vichy, as well as addressing the politics of memory surrounding the Holocaust, communism and colonialism, this book provides a critical exploration of law’s role in ‘belated’ transitional justice contexts. The book examines how and why law has become so central in processes in which the past is constituted as a series of injustices that need to be rectified and can allegedly be repaired. As such, it explores different legal modalities in processes of working through the past; addressing the implications of regulating history and memory through legal categories and legislative acts, whilst exploring how trials, restitution cases, and memory laws manage to fulfil such varied expectations as clarifying truth, rendering homage to memory and reconciling societies. Legal scholars, historians and political scientists, especially those working with transitional justice, history and memory politics in particular, will find this book a stimulating exploration of the specificity of law as an instrument and forum of the politics of memory.
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The authors critically review memory research, trauma treatment, and legal cases pertaining to the false memory controversy. They discuss current memory science and research with both children and adults, pointing out where findings are and are not generalizable to trauma memories recovered in psychotherapy. The main issues in the recovered memory debate are covered, as well as research on emotion and memory, autobiographical memory, flashbulb memory, memory for trauma, and types of suggestions, such as misinformation suggestions, social persuasion, interrogatory suggestions, and brainwashing. Research on the reliability of memories recovered in hypnosis is reviewed and guidelines for using hypnosis with patients reporting no, partial, or full memory of having been sexually abused are outlined. The authors review the development and current practice of phase-oriented trauma treatment and present a standard of care that is effective and ethical. Their exploration of memory in the legal context includes a review of malpractice liability and current malpractice cases for allegedly implanting false memories in therapy, as well as the evolving law around legal actions by people who have recovered memories and around hypnosis and memory recovery. This is an essential reference on memory for all clinicians, researchers, attorneys, and judges.
How might law matter to the humanities? How might the humanities matter to law? In its approach to both of these questions, The Oxford Handbook of Law and Humanities shows how rich a resource the law is for humanistic study, as well as how and why the humanities are vital for understanding law. Tackling questions of method, key themes and concepts, and a variety of genres and areas of the law, this collection of essays by leading scholars from a variety of disciplines illuminates new questions and articulates an exciting new agenda for scholarship in law and humanities.
The demand for recognition, responsibility, and reparations is regularly invoked in the wake of colonialism, genocide, and mass violence: there can be no victims without recognition, no perpetrators without responsibility, and no justice without reparations. Or so it seems from law’s limited repertoire for assembling the archive after ‘the disaster’. Archival and memorial practices are central to contexts where transitional justice, addressing historical wrongs, or reparations are at stake. The archive serves as a repository or ‘storehouse’ of what needs to be gathered and recognised so that it can be left behind in order to inaugurate the future. The archive manifests law’s authority and its troubled conscience. It is an indispensable part of the liberal legal response to biopolitical violence. This collection challenges established approaches to transitional justice by opening up new dialogues about the problem of assembling law’s archive. The volume presents research drawn from multiple jurisdictions that address the following questions. What resists being archived? What spaces and practices of memory - conscious and unconscious - undo legal and sovereign alibis and confessions? And what narrative forms expose the limits of responsibility, recognition, and reparations? By treating the law as an ‘archive’, this book traces the failure of universalised categories such as 'perpetrator', 'victim', 'responsibility', and 'innocence,' posited by the liberal legal state. It thereby uncovers law’s counter-archive as a challenge to established forms of representing and responding to violence.
This book examines the criminalisation of denials of genocide and of other mass atrocities in Europe and discusses the implications of protecting institutional historical memory through criminal law. The analysis highlights the tensions with free speech, investigating the relationship between criminal law and historical memory. The book paves the way for a broader discussion about fake news, ‘post-truth’ scenarios, and free expression in a digital world. The author underscores the need to protect well-founded factual records from the dangers of misinformation. Historical denialism and the related jurisprudence represent a key step in exploring this complex field. The book combines an interdisciplinary approach with criminal law methodology. It is primarily aimed at academics, practitioners and others who wish to deepen their understanding of historical denialism, remembrance laws, ‘speech crimes’ and freedom of expression. Emanuela Fronza is Senior Research Fellow in Criminal Law and Lecturer in International and European Criminal Law at the School of Law, University of Bologna. She is a Principal Investigator within the EU research consortium Memory Laws in European and Comparative Perspectives funded by HERA (Humanities in the European Research Area).
Memory is often the primary evidence in the courtroom, yet unfortunately this evidence may not be fit for purpose. This is because memory is both fallible and malleable; it is possible to forget and also to falsely remember things which never happened. The legal system has been slow to adapt to scientific findings about memory even though such findings have implications for the use of memory as evidence, not only in the case of eyewitness testimony, but also for how jurors, barristers, and judges weigh evidence. Memory and Miscarriages of Justice provides an authoritative look at the role of memory in law and highlights the common misunderstandings surrounding it while bringing the modern scientific understanding of memory to the forefront. Drawing on the latest research, this book examines cases where memory has played a role in miscarriages of justice and makes recommendations from the science of memory to support the future of memory evidence in the legal system. Appealing to undergraduate and postgraduate students of psychology and law, memory experts, and legal professionals, this book provides an insightful and global view of the use of memory within the legal system.