Over the last decades, memory studies have become one of the priority research areas in the field of Humanities, while at the same time in public debates the “duty of memory” seems to have been replaced by a sort of obsession with memory.
Each chapter yields fresh insights into the relationship between law, literature, and justice. It is not possible to deal with each chapter satisfactorily, but it is possible to discuss some of them briefly.
The themes open with Greta Olson’s arresting analysis of the deficiencies with the manner in which law and literature is being pursued. The argument is a reprint of the article to be found in the 2010 volume of Law and Literature, but includes a post-script wherein Olson notes further developments on her thinking since the original article was published.
Mattias Kumm’s chapter on thick constitutional patriotism includes a call for a conceptualization of European history in a manner that provides an exegesis about the roots of European political development. It would focus on human rights, democracy, and the rule of law, but understands that such a history is “to a significant extent the history of the fight against these ideals, their hypocritical abuse, or their complacent misunderstanding.” Kumm’s project is a refreshingly ambitious one and, to the author’s credit, he puts forward a template for how such a project might be developed in the field of legal history, with a thematic focus on the time frames between 1789 and 1919, 1919 to 1992, and the post-1992 legal sphere. There is much to be said for such a project, but it is not clear that the disparate national tendencies of the European continent allows such a history to be told convincingly. The temptation to focus solely on those parts of the history which conform to our current values may be insuperable. Kumm falls victim to this difficulty when dealing with the US Declaration of Independence, which he describes as follows:
A further characteristic [of the revolutionary tenets of the French Declaration of the Rights of Man and the Citizen and the US Declaration of Independence] is the absence of both God and religion (or any other perfectionist ideal) as a point of ultimate reference for legal and political life. Many will find it plausible that the ultimate roots of these rights lie in the fact that God has created persons in a certain way, and that rights are instrumental to human flourishing… But, when the authors of the Declaration of Independence declared the foundational principles of Political Liberalism as self-evident, it created the possibility of thinking of Political Liberalism as the focal point of a consensus that, for the purposes of organizing public life, avoided deeper questions of theological foundations and ultimate purpose.
This is an ahistorical treatment of the Declaration of Independence which appeals to the “Supreme Judge of the World”, “divine Providence”, “the Laws of Nature and of Nature’s God” and, in the extract that Kumm directly refers to, man’s “Creator”. This was not a document that avoided deeper questions of ultimate purpose; it repeatedly referred to these questions. Moreover, the problem recurs if we read Kumm’s point in a more restrictive fashion; the US Declaration of Independence, insofar only as it referred to man being created equal, created the possibility for the future expression of political liberalism. This overlooks those elements of the document which do not conform to this reading, and makes the analysis of the document contingent on subsequent developments where it was used in a manner conducive to the development of the ideal of political liberalism.
The French Declaration of the Rights of Man, in contrast, can be read in the manner that Kumm proposes for the US Declaration, and suggests that such a project could enjoy some success. Kumm is to be applauded for his ambitious project, but the treatment of such material promises to be an arduous task.
Sven Erik Larsen’s chapter on the interrelationship between forgiveness and law is a masterly typology of forgiveness which ranges across examples as diverse as the return of Korean NGOs after capture by the Taliban and the removal of Inuit children from Greenland to Denmark. The typology is comprehensive and compelling.
Mia Rendix’s chapter on the return of the Icelandic sagas notes the distinction between the legal and political processes that characterized the relationship between Denmark and Iceland on the issue. Denmark’s perfect claim to legal title was undermined by statements such as Alexander Jóhannesson’s that the sagas were “like flesh of our flesh and blood of our blood”. Rendix’s analysis spans the legal and cultural spheres, and the local and universal art spheres, with commendable results. I disagree with Rendix’s conclusion that the current digitization projects can undercut the national insistence on exclusive rights. It seems to me that such projects will act as a supplement to national initiatives; the educational and cultural significance of an object in physical form should not be underestimated.
The volume as a whole marks a considerable addition to the field of law and literature and should be celebrated as such. The work will appeal to academic and general readers alike.