scholarly journals The criminalisation of symbols of the past: expression, law and memory

2014 ◽  
Vol 10 (3) ◽  
pp. 295-314 ◽  
Author(s):  
Agata Fijalkowski
Keyword(s):  
Criminal Law ◽  
Transitional Justice ◽  
Freedom Of Expression ◽  
The Political ◽  
Concerted Effort ◽  
The Past ◽  
Constitutional Tribunal ◽  
Historical Comparative ◽  
The Baltic ◽  
Political Realities

AbstractThis paper examines the criminalisation of symbols of the past. It considers the 2011 judgment of the Polish Constitutional Tribunal. In this compact and well-ordered decision, the Tribunal, with reference to key European examples, assessed critically the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past pertaining to fascist, Communist or other totalitarian content. Its ruling, which found amendments to the law in Poland that tightened up restrictions on the use of totalitarian symbols to be unconstitutional, is considered within three important contexts: first, the broad European context, where the concept of totalitarian crimes has become subject to EU human rights legislation relating to the freedom of expression; second, the context of post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, the context of transitional justice, where criminalising symbols of the past has become a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. The paper discusses the two case-studies most relevant to Poland, namely those in Germany and Hungary. Reference is also made to the Baltic States, which, together with Poland, have made a concerted effort to bring the notion of totalitarian crimes and histories to the attention of Europe. The paper concurs with the contention that cases concerning the use of symbols provide an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal and philosophical complexities of criminal uses of symbolism, the political realities, and the key dimension of transitional justice and its relationship to expression, law and memory.

Regime Change, State Crime and Transitional Justice: A Criminal Law Retrospective Concentrating on Former Eastern bloc Countries3

1998 ◽  
Vol 6 (2) ◽  
pp. 140-158
Author(s):  
Jörg Arnold ◽  
Emily Silverman
Keyword(s):  
Criminal Law ◽  
Transitional Justice ◽  
Eastern Bloc ◽  
Criminal Prosecution ◽  
Eastern European ◽  
The Past ◽  
Change State ◽  
Eastern European Countries ◽  
The Individual

AbstractIn an initial summing up of this necessarily abbreviated and cursory report of findings, the first thing to recognise is that the countries examined in the study accorded different significance to the criminal law as a means for dealing with the past. The Eastern European countries, at any rate, appear to be largely in agreement with regard to the role of rehabilitation and compensation, although more comparative research into their realization in practice is required. With regard to the direct criminal prosecution and punishment of political and state-promoted crime, however, there is much less uniformity. This is clearly illustrated by the disparate criminal justice practices in the individual countries. Nevertheless, it cannot be said that criminal law plays no role whatsoever in accounting for the past.

Memory and Politics in Democratic Spain

2020 ◽  
pp. 46-61
Author(s):  
Omar G. Encarnación
Keyword(s):  
Civil War ◽  
Transitional Justice ◽  
Spanish Civil War ◽  
The Political ◽  
Truth Telling ◽  
Franco Regime ◽  
Political Class ◽  
Human Rights Abuses ◽  
The Past ◽  
The Right

This chapter explains the persistence of Spain’s ‘politics of forgetting’, a phenomenon revealed by the wilful intent to disremember the political memory of the violence of the Spanish Civil War and the human rights abuses of General Franco’s authoritarian regime. Looking beyond the traumas of the Civil War, the limits on transitional justice and truth-telling on the Franco regime imposed by a transition to democracy anchored on intra-elite pacts, and the conciliatory and forward-looking political culture that consolidated in the new democracy, this analysis emphasizes a decidedly less obvious explanation: the political uses of forgetting. Special attention is paid to how the absence of a reckoning with the past, protected politicians from both the right and the left from embarrassing and inconvenient political histories; facilitated the reinvention of the major political parties as democratic institutions; and lessened societal fears about repeating past historical mistakes. The conclusion of the chapter explains how the success of the current democratic regime, shifting public opinion about the past occasioned by greater awareness about the dark policies and legacies of the Franco regime, and generational change among Spain’s political class have in recent years diminished the political uses of forgetting. This, in turn, has allowed for a more honest treatment of the past in Spain’s public policies.

scholarly journals Approaching or Re-thinking the Realm of Criminal Law?

2019 ◽  
Vol 14 (3) ◽  
pp. 307-318
Author(s):  
Nicola Lacey
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
The Political ◽  
Moral Foundations ◽  
The Past ◽  
Political Morality ◽  
To Come ◽  
Civil Order ◽  
Antony Duff

Abstract In his latest monograph, The Realm of Criminal Law, Antony Duff gives us a further, magisterial statement of the vision of criminal law, its procedural framework, and its sanctioning system, which he has been developing over the past 35 years. This is Duff’s own book-length contribution to the tremendously fruitful collaborative Criminalization project. That project has already generated four edited volumes (Duff et al. in The boundaries of the criminal law, 2010; The structures of the criminal law, 2011; The constitution of the criminal law, 2013; Criminalization: the political morality of the criminal law, 2014) and two fine monographs by Farmer (Making the modern criminal law: criminalization and civil order, 2016) and Tadros (Wrongs and crimes, 2016; see also Tadros in The ends of harm: the moral foundations of criminal law, 2011). It will shape the field for decades to come; and it has decisively laid to rest a longstanding puzzle about why, within criminal law theory, the principles underlying criminalisation had received relatively little attention as compared with those underlying, most obviously, criminal responsibility (cf. Lacey in Frontiers of criminality, 1995).

Why Has It All Gone Wrong? The Past, Present, and Future of British Pensions

2006 ◽  
Author(s):  
Frank Field
Keyword(s):  
Pension Reform ◽  
The Political ◽  
Retirement Income ◽  
Retirement Pension ◽  
Means Testing ◽  
The Past ◽  
Reform Programme ◽  
National Insurance ◽  
State Pension ◽  
Political Realities

This chapter examines the political framework within which the debate about retirement income in Britain is conducted. It uses the lessons of the national minimum strategy, but takes into account today's political realities, to draw up a pensions reform programme. The Pensions Reform Group (PRG) advocates a new basic universal pension which guarantees an income in retirement above means-testing. This is to be achieved by keeping the current pay-as-you-go state pension and building alongside it a funded scheme so that in total a pension between 25–30 per cent of average earnings can be paid. This is a collective scheme but is not one run by the state as is today's national insurance retirement pension. Serious pension reform is far too big an issue for governments not to be interested in the outcome. That interest is accepted but balanced by the form of governance being proposed by the PRG.

Fake Spies, Democratization, and Transitional Justice in South Korea

Asian Survey ◽  
2021 ◽  
Vol 61 (2) ◽  
pp. 356-386
Author(s):  
Sunkyoung Park ◽  
Ji Yeon Hong
Keyword(s):  
South Korea ◽  
Transitional Justice ◽  
Authoritarian Regime ◽  
The Political ◽  
Survey Analysis ◽  
Political Repression ◽  
Data Set ◽  
The Past ◽  
Political Conditions ◽  
New Democracy

Many democracies start with aspirations to rectify wrongs that occurred under the preceding authoritarian regime. To what extent can a new democracy address political repression and violence by dictators, given that key actors from the past often remain politically powerful? What determines the success of those efforts? We construct and analyze a novel data set on 102 retrials of allegedly fabricated espionage cases in South Korea to explain the political conditions under which a democratic judiciary reverses past errors. We find that the time since democratization, a leader’s policy drive for transitional justice, and the degree of fabrication in the past all affect retrial acquittal rates. We also find that judges who were appointed under the authoritarian regime are less likely to nullify past verdicts. Furthermore, national survey analysis suggests that the overturning of past fabricated verdicts significantly enhances citizens’ overall trust in the judiciary.

Conclusion

2019 ◽  
pp. 146-152
Keyword(s):  
French Revolution ◽  
Transitional Justice ◽  
Social World ◽  
The Political ◽  
Collective Trauma ◽  
The Past ◽  
Cultural Transformations ◽  
The Social ◽  
The Holocaust ◽  
Second World

The conclusion to the book makes the case that there is a connection between the political, social, and cultural transformations of the French Revolution and current debates on transitional justice and collective trauma. It is common to trace current discussions about coming to terms with the past to the Second World War and especially to the aftermath of the Holocaust. This chapter argues that there is a longer and deeper history at play here, one that goes back to the eighteenth century’s Age of Revolutions, to the radical rupture with the past that it postulated, and to the new visions of the social world that it engendered. In other words, the conclusion to the book sheds light on what is distinctly modern about the question of what to do with difficult pasts.

Chasing Rainbows: 2005–2020

2021 ◽  
pp. 253-294
Author(s):  
Justin Collings
Keyword(s):  
South Africa ◽  
Criminal Law ◽  
The Political ◽  
Constitutional Court ◽  
Economic Rights ◽  
The Public ◽  
The Past ◽  
Problematic Relationship ◽  
Constitutional Justice ◽  
The Government

This chapter highlights how the Constitutional Court of South Africa has engaged with the memory of apartheid since 2005. It shows how many of the patterns of earlier years persisted—aggressive invocations of apartheid in cases of criminal law or criminal procedure, or when the political stakes were low, but more reticence when confronting the government or applying socio-economic rights provisions. But there was a definite sea change as the Court increasingly confronted the clientelism, cronyism, and corruption that had become endemic to uninterrupted single-party rule. In 2016, the Court dramatically invoked the memory of apartheid to underwrite its decision requiring President Jacob Zuma and his abettors to repay the millions spent from the public treasury on a “security upgrade” to the president’s private residence in Nkandla. The chapter concludes by noting the problematic relationship between constitutional justice and collective memory, and describing how the Court, although it recognizes the problem, nonetheless remains committed to adjudicating in the present by the light of the past.

On demons and dreamers: Violence, silence and the politics of impunity in the Brazilian Truth Commission

2017 ◽  
Vol 48 (4) ◽  
pp. 316-333
Author(s):  
Henrique Furtado
Keyword(s):  
Narrative Analysis ◽  
Transitional Justice ◽  
The Political ◽  
Truth Commission ◽  
The Past ◽  
Post Conflict ◽  
Revolutionary Violence ◽  
Freedom Fighters ◽  
Political Project ◽  
Brazilian Case

Measures towards post-conflict or post-authoritarian justice have historically relied on the merging of the concepts of silence, violence and impunity in order to create a single promise of justice. Scholars and practitioners in the field usually defend a trifold agenda of breaking the silence about violations of human rights, denouncing systematic violence in the past and fighting impunity as the only way of ensuring that violence never happens again. This trope was mobilized in Brazil in 2014, when the report of the country’s National Truth Commission (CNV) was released. However, in the Brazilian case, truth-seeking also produced its own form of ‘silence’. Whereas the CNV commendably denounced 377 perpetrators as the ‘demons’ responsible for implementing a state of terror during the last dictatorship (1964–1985), it also created a depoliticized and victimized idea of leftist militants as mere dreamers who fought for liberty and democracy in the past. By representing leftist militants as freedom fighters, the CNV silenced their fundamental ideas (and actions) regarding the concept of revolutionary violence and its radical programme of structural change. In this article, I provide an explanation that connects the CNV’s ‘silencing’ of this political project to the unreflective merging between the concepts of silence, violence and impunity in the literature. Via a narrative analysis of the CNV’s report and a critique of transitional justice debates, I argue that the silence on the political project of the radical left in Brazil echoes transitional justice’s silence about the complexities of violence in general.

Una triplice Vergangenheitsbewaltigung. La politica del passato in Germania

2009 ◽  
pp. 27-53
Author(s):  
Marzia Ponso
Keyword(s):  
Political Culture ◽  
Criminal Law ◽  
International Criminal ◽  
Specific Aspect ◽  
Point Of View ◽  
International Criminal Law ◽  
The Political ◽  
Historical Knowledge ◽  
The Past ◽  
Working Out

- The article discusses that specific aspect of German political culture known as Vergangenheitsbewältigung, i.e. the going over the totalitarian past through a threefold reworking: judicial (trials, convictions, political and administrative purges), economic (compensations and reparations) and cultural (a deep historical knowledge of what happened, the working out of moral and law criteria for judgment, an at least symbolic declaration of solidarity towards the victims). The German case is interesting because of its uniqueness. First of all, from the judicial point of view, the way the past was reworked has had an extraordinary impact, being at the root of present developments in international criminal law. From the political and the moral-philosophical perspectives, no other population has so thoroughly re-defined its identity with respect to its past: constitutional and post-national patriotism are a case in point. One more exceptional aspect is that, after the reunification, Germany has lived through a new Vergangenheitsbewältigung which suggests interesting comparative considerations.

scholarly journals Reconfigurations of Time: Reflections on the Exhibition, Arts of Resistance: Politics and the Past in Latin America, UBC Museum of Anthropology

2021 ◽  
pp. 118-139
Author(s):  
Laura Osorio Sunnucks
Keyword(s):  
Latin America ◽  
Cultural Heritage ◽  
American Art ◽  
The Political ◽  
South American ◽  
The Past ◽  
Ancestral Knowledge ◽  
The Face ◽  
Popular Arts ◽  
Political Realities

This article reflects on the exhibition Arts of Resistance: Politics and the Past in Latin America, showing how the project challenged common representations of Central and South American art and history by displaying local, often Indigenous, ways of managing cultural heritage, as well as some of the ways that ancestral knowledge and popular arts are used to document and resist political realities. Furthermore, it argues for the overt politicization of museological and exhibitionary perspectives using radical cosmopolitical theory. Through this framework, I argue for the political significance of the art forms included in the exhibition that champion local philosophies and positions in the face of various forms of marginalization.

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