Guilt about the Past Read Online Free PDF Page B

rule of law, state prosecution of criminal offences proves unavailing when it pursues actions that were not punishable at the time they were committed. The difficult constitutional law question concerning retroactive application of the law starts with ‘ nulla poena sine lege ’, a well-established principle that prohibits the legislature declaring an action a crime in hindsight.
    Nevertheless, the law can be used to deal with the past in whatever way a society chooses. It can foster remembrance, neglect and repression. Criminal prosecution, restitution, fact-finding commissions and tribunals, and the granting of access to files and archives all support remembrance, while the granting of amnesty and the banning of certain topics and themes from public discourse encourage forgetting and repression. The law can rehabilitate citizens convicted of crimes, compensate for punishments suffered, repair destroyed careers and correct past decisions retroactively and it can likewise allow past sentences, punishments, decisions and careers to stand as they are. In every one of these instances the law is and was made to fit a given situation because some societies favour remembering, while others would rather forget.
    In this rather narrow sense there is also a sort of mastering the past. The past is not simply the events that have happened but a construction of them in a manner that successfully integrates them into an individual or collective memory. The past is a construct, and creating that construct is a task to be undertaken and completed, at least provisionally, because new findings constantly arise from past events or new needs for integration develop. In this narrow sense the past is a task that will be undertaken regardless of whether it is reconstructed in a culture of remembrance, with partial forgetting, or in a culture of forgetting, with partial remembering. Moreover, the task must be completed. Individual and collective biographies require integration of the past as a requisite for the integrity of self-perception and identity. Past events must be integrated so that they are not played out against the present, thereby possibly damaging the current state of self-perception and identity.
    There are many instances in which mastery of the past flows just as well through forgetting as through remembrance. Cultures of forgetting have appeared from ancient to modern times, and, for countries such as Spain with its Civil War, Russia with its Stalinist past, or Austria with its national socialist crimes, it is difficult to argue that forgetting and repression do not work. These countries have integrated the atrocities committed during a generation or more into their respective collective biographies and have achieved a peaceful transition to the next generation.
    The law’s instrumentality for overcoming the past through recollection as well as through repression, for fostering a culture of remembrance or a culture of forgetting, does not negate the fact that certain factors invite forgetting and make remembering difficult, while others invite remembering and make forgetting difficult.
    The more recently an event took place, the easier it is to recollect and the more difficult to forget, the stronger the demand for legal redress and the resistance to legal amnesty. But once a first wave of remembrance and legal redress has occurred, a condition of exhaustion can set in, hindering the next wave. In Germany in the fifties, the first wave of remembrance and legal redress tapered off, partly because the Germans were exhausted from war, destruction, and expulsion, were weary of dealing with the past, and were concentrating the energies they had on new beginnings and reconstruction. That first wave would have tapered off even earlier had the Allied Forces not triggered and supported it. Again, after the fall of the Berlin Wall the citizens of the new states in the East were exhausted from change and soon did not want to hear another