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MEMORY, HISTORIC INJUSTICE, AND RESPONSIBILITY

W. James Booth

: Routledge

Taylor & Francis Group

UNIVERSITEIT GENT NEW YORK AND LONDON Faculteitsbibliotheek Letteren en Wijsbegeerte

First published 2020 by Routledge 52 Vanderbilt Avenue, New York, NY 10017

and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 Taylor & Francis

The right of W. James Booth to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information Storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in- Publication Data A catalog record for this book has been requested

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Cover image: Wall mural of one of the disappeared of the Argentinian “dirty war.” Av. San Martin, Ushuaia, Tierra del Fuego, Argentina. Photographed by the author,

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In loving and grateful memory of my parents, Bill and

Madeleine Marie-Jeanne Booth

CONTENTS

List of Figures

Acknowledgments

Introduction: An Archipelago of Absence

1 Justice Between Past and Present

2 Is the Past a Foreign Country?

3 Doing Justice to the Dead

4 Conclusion

Index

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FIGURES

11. Derry rally. June 15, 2010

3.1 Lucanian red-figure nestoris portraying Orestes, Clytaemestra, and the Furies

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ACKNOWLEDGMENTS

Earlier versions of parts of this study were presented at the: University of

Virginia Political Theory Colloquium, American Philosophical Association

(Eastern division) Annual Meeting The Ensuring Justice Across Generations

Conference at Queen’s University, Belfast, Northern Ireland, the Historical

Justice and Memory Conference, Melbourne, and in papers delivered at the University of Toronto, the UNC Institute for the Arts and Humanities, the

Berry Lecture at Vanderbilt, and the University of Texas-Austin. I am grate-

ful to the organizers and participants for their many critical questions and

suggestions.

Warm thanks to my colleagues at Vanderbilt and elsewhere who commented

on the arguments set out in the following pages: Lawrie Balfour, Ronnie Beiner, Jeffrey Blustein, Marilyn Friedman, Marc Heatherington, Nadim

Khoury, Murad Idris, Emily Nacol, Mark Osiel, Lucius Outlaw, Jeff Spinner-

Haley, Bob Talisse, and Janna Thompson.

I am grateful to the late Edward Daly, formerly Bishop of Derry, and to the

late Leo Wilson of Belfast, both of whom helped me understand the Northern

Irish Troubles.

I owe a special debt to my Routledge editor, Natalja Mortensen, the Press’s

referees, and to Charlie Baker for their tremendously helpful advice and assistance.

My wife, Jane, and daughter Maddy have generously put up with years of

conversation about the topics of this book. Many thanks!

Revised material from two articles of mine appears in this study with per-

mission. They are “From This Far Place: On Justice and Absence.” American

Political Science Review, 105 (2011): 750-764 and “The Color of Memory: Read-

ing Race with Ralph Ellison.” Political Theory 36 (October 2008): 683-707.

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INTRODUCTION

An Archipelago of Absence

“In the Land of the Unseen"

In Sophocles’s Electra, Electra asks “How when the dead are in question can

it be honorable not to care?” Caring for the dead is one of the most basic of

human practices: for their bodies, their last wishes, and for remembrance of them. This is a book about one of the ways in which we care for the dead: by

doing them justice. Haunting all these practices, including bringing justice to

the dead, and making them perplexing, is what we might term a vernacular

form of naturalism: that what can be seen with our eyes, the world as an object

of possible experience, tells us that the dead are radically absent, indeed nonex-

istent as persons, a mere “handful of dust.” They are, as Aeschylus writes, “in

the land of the unseen [amauron],” in relation to which we, the living, occupy

a very “far place.”? That absence itself can be understood in a number of ways:

as absolute, in the sense that the dead simply and utterly cease to have being,

hence are no longer subjects, and cannot be parties to ongoing relationships

of any kind, whether political, familial or religious. In particular, there are no

relations of justice with them, for they are not persons and therefore cannot be

harmed or benefitted by our action or inaction in relation to their fates. “For

living creatures,” Aristotle writes, “living is being” and so dead people “do not

exist.”? Their physical remains, or grave sites, are their only presence among

the things that exist, though strikingly we often hold those grave sites close

to the communities of the living, tend their lawns and visit our dead there.*

Apart from that, the language of their presence seems to be situated somewhere

between fiction, imagination, and madness. At the other end of the interpreta-

tive spectrum, and especially among some faith traditions, there is the certainty

that death is not the end of existence but the beginning of a new life not here

2 Introduction

in this world perhaps, yet in some other, whether known to us or (in Hamlet’s

words) an “undiscovered country.”°

Yet we do nevertheless care about the dead, including addressing previ-

ously unanswered historical injustices that marred and, in some cases, ended

their lives. In that way, we allow (as Axel Honneth argues) for a certain “dis-

empowerment” of our everyday naturalism about the dead.° If the dead are

characterized above all by a radical, if ambiguous, distance they are but one

“undiscovered country” in an archipelago of the absent, the islands of which

(like the dead themselves) seem, despite their non-presence, to be nevertheless a part of our world. It is particularly fitting that justice has a certain kinship

with the world of the absent, in its aspirational character towards future persons and those living individuals rendered invisible, and in its efforts to break out of

a leaden positivism in order to find that “perspective of eternity.”” In practice,

it is reflected in the drive to give a response to the wronged, even (or so I shall

argue) the wronged who are dead, if only that of discovering and proclaiming

the truth about past crimes and their victims.

In the Phaedo, Plato maps some of this archipelago, bringing together the

living, the dead, justice, and philosophy. His interest in this is certainly not one

with Electra’s. For her, the challenge emerges from a concern for the wronged

dead understood as giving them justice. For Plato, on the other hand, it is the

status of the world as it is given to us through the senses and of those things which are not present to the senses: “justice itself,” the dead and so on. So in

its central focus, doing justice to the dead, the present study does not intersect

with the Platonic corpus. Nevertheless, as a guide to the “land of the unseen,”

Plato is extraordinarily helpful in his observations on the place of absence in our world. In the beginning pages of this section, then, I follow him briefly as he guides us through some of this archipelago.

Those who pursue philosophy, Socrates says, study nothing but dying and

being dead. Of course, the dramatic setting (Socrates’s imminent execution)

underscores and sharpens the relationship of death and philosophy. But the imme-

diate spur to their conversation is not so much Socrates’s own soon-to-occur

death. Rather, it is the fear that, according to Cebes, most humans have, namely,

that with death the person ceases to exist altogether and is reduced to the most radical absence, to nothingness.® Socrates’s direct response to this consists of an argument that the soul survives death. But that assertion is embedded in a still

wider set of claims that bear on the arguments I shall advance in these pages.

To assert the reality of the dead against their apparent nullity (as the “unseen”’),

Socrates turns from the body to the soul? and to the thought that the soul endures without being embodied. The soul, unlike the body, is something invis-

ible,!° not given to the senses and thus of uncertain reality for creatures for

whom the real is first and foremost what can be perceived as present. In a surviv-

ing fragment, Antiphon writes: “For men consider things which they see with

their eyes more credible than things which cannot be established by ocular

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Introduction 3

proof.”"' And again: “We are naturally disposed to notice things present, to hand, and before us. But it is not natural to retain a clear image of them when

they have gone from our sight.” Autopsia, seeing with one’s own eyes, enjoyed

a privileged position from the standpoint of knowing. Absence in this con-

text means roughly not given in sensory experience. Hence the question: does

absence of this kind mean unreal, non-being, as opposed to simply unknown/

unseen?3 In the Phaedo, the fear that death extinguishes utterly the being of the soul

and person, consigning them to the “land of the unseen,” and thus transforms

them into pure nothingness, is (partially) allayed by Socrates's response that

even the permanently absent and invisible have being and are not nullities. Not

nullities: and not mere fictions, or confections wrought by the clever manipula- tion of words.'* Nor on this account is the reality of the dead something con- jured up by a fevered mind. The recurring doubt in Hamlet as to whether the

dead King’s presence is actual or merely a product of Hamlet’s madness does not trouble this Socratic account. And so he continues, arguing in detail for

the characteristics of the enduring soul. But for my purposes here the relevant

point lies in his defense of the reality of the absent. The invisible, what is not experienced, is part of our world and so too therefore are the dead and the not-

yet-born, past and future, what should have been or should in the future be.

And with that emerges the possibility of an idea of justice that breaks sharply

with the constraints of naturalism, and allows for an extension of the boundar-

ies of political community, to include the denizens of lands unseen, the past

and future.

“Light to Compensate for Your Darkness”'>

The archipelago of absence and presence takes many forms. One is the Pla-

tonic account of absence and justice, where “justice itself,” is something that,

though not visibly present, is nevertheless a real presence in actually existing

cities. That unusual coupling of the absent but somehow with us can be seen in Socrates’s description of the best city as a “pattern . . . in heaven.’”"® “Justice

itself” dwells in the “heavens,” and that far place separates it from the world of

sight, flux, and the passage of time. Yet as a possibility, or perhaps only an

aspirational North Star, its existence infuses the worldly city with a kind of

haunting presence, a reminder or trace of justice. | now turn to a related but

quite different variant of this question of justice and absence. Justice and injus-

tice are involved with absence and with a shadowing of the present not only in the Platonic idea of a timeless paradigm, but in a more earthly manner, as part

of the questions associated with addressing past injustice and its dead victims. The

never embodied form of “justice itself” of the Platonic account is here replaced

by the once but no longer embodiedness of the dead. Plato’s focus on the being

and intelligibility of “justice itself” now yields to the problem of whether and

4 Introduction

how we can do justice to those who seem irretrievably absent, to past victims

of injustice.'” The phrase at the head of this section, from Aeschylus’s Libation-

Bearers (‘a light to compensate for your darkness”), here functions as a bridge

between Socrates’s epistemic framing of the problem of absent justice and that

of Electra’s caring for the dead. Justice (Aeschylus suggests) involves bringing

the light of recognition and acknowledgment to the darkness/invisibility that

shrouds the dead victims of injustice, thereby making them in a way visible and

present, still subjects of justice and not “dust [or “earth,” ga] and nothing.””*

To begin an exploration of this part of the archipelago of the absent, I turn to

classical Greek tragedy to encounter not an archaic view of the moral universe

but, on the contrary, one that, as Bernard Williams wrote, can help us better

understand our own moral universe.”

Tragedy presents an effect of past time.”° It is therefore concerned with

absence, for absence is the mark of the passing of time. There is thus an other-

ness, a distance, not that between perception and the fully intelligible, but one

opened up between the present and the past and their denizens, the living and

the dead.?! The dead seem to be the absent past par excellence, the purely past,

having neither a present nor a future.”? Classical tragedy questions this view

of the absence associated with death and the past.” The absences of tragedy

are bound up with death and wrong-doing, in which both the dead and the

effects of past wrongs endure and color the present. But plainly it is not just

death that marks out the absences and shadows of the tragic vision. It is also the

idea of a “distant origin,” an ancient, deep, and often forgotten and invisible

fault extended across time and generations, one that lies at the source of aitia,

of guilt, debt, and responsibility, binding past to present, the absent to persons

here and now in a community of accountability. It is that original bloodshed or

other fundamental violation of the just order of things that enables us to make

sense of the unfolding of the characters’ fates.2* The enduringness of the crime

across time, sometimes expressed in the idea of the pollution (miasma) it causes,

is one of the ways in which the past and absence haunt the present.”

A second and related source of this presence of the past is the activity of

memory, itself of two types: (1) the affective memory of family members across

generations. Here the underlying fact of a family marked by death and blood-

shed, often shown as invisible to some of the protagonists, gives rise to among

other things the struggle to remember. (2) Memory and justice: to forget the

dead seems dishonorable and unjust as Electra suggests in a passage quoted ear-

lier: “How when the dead are in question can it be honorable not to care for

them?” Acts of memory acknowledge the enduring obligations among family

members and preserve those members from the uncaring nothingness of for-

getting, yielding what Michéle Simondon calls “memory-justice,””* that is, the

memory of the crime and the demand for justice to be done, a demand some-

times originating with family members themselves (Electra) and at other times

proceeding from the Furies, both acting as agents of the unjustly dead.

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Introduction 5§

In these ways, the obstinacy of the fact of the crime, the (here familial) obli-

gation to remember it and the overlapping memory of justice (represented most

strikingly by the Furies of Aeschylus’s Eumenides), the past of death, the victim

and the injustice done her, do not entirely recede into the oblivion of absence

but remain rather a presence. This stands in marked contrast to the view of the

present “regarded as what is,” from which vantage point the past seems nothing

more than non-presence, not-being, the “no longer now.” Classical tragedy

represents this past as an integral part of our present, and that evoking it is not

breathing the appearance of life into something that is no longer but rather dis-

tancing ourselves from the standpoint of being-as-the-visible-present in order

better to grasp something the reality of which persists, if only in the shadows,

obscurely, and out of sight.2® The recurrent motifs of blindness and forgetting,

and the lack of transparency as to the origins of the protagonists’ fates*’ are ways of emphasizing the weakness of the eyes and the limits of the visible, and in

so doing to underscore the centrality and the enduring presence of the absent

invisible. Oedipus’s name designates both his injured feet (as silent witnesses

to the enduring presence of his past) and a knowledge of the trajectory along

which his fate will lead him.*°

The tragic universe is the domain of night, of absence and obscurity. It is

Antigone’s cave, not Plato’s where false light creates a “day that is like night.”

Hers is a world of hidden fate, of intimations and traces of the past and of the

dead still among us, shadowing the present. The darkness of the imagery is closely bound up with the past of death and injustice, with their invisible pres-

ence in the fates of the living, and often with the protagonists’ ignorance of that

long duration. Electra’s “death-heavy” family home is the place of her misery.*? Her family is her fate; its past, her present. So likewise, Antigone tells her sis-

ter Ismene that they are ill-fated daughters living under the curse carried in

their father’s blood, held by the “devouring immanence” (in George Steiner’s

phrase) of their father.*? And in the Libation-Bearers (lines 1065ff), the Chorus recounts the history of the family curse, bringing into view the weight of the

past in their ill-starred home, thereby allowing us to make sense of Electra’s fate

and that of her family members.** The past in that sense lingers and casts its shadow on the present time, with

the result that there is no pure now moment but always an extension into the

before, and into the to-come as well. That presence of the past is not something

confected, not a psychological event or phantasm, but is rather a real presence,

though one radically different from that of the living. When the Chorus in the Libation-Bearers asks Orestes what imaginings (doxai) are bothering him so, he

answers that they are not doxai at all but the manifestly present avenging hounds

of his mother Clytaemestra.*° The past lives in the present, rarely manifest or saphos, typically there in an obscure but nevertheless real fashion. The world

of the shadowing of the present by the absent dead is to be distinguished from

the confected presence of the rhetorician’s invoked past. That latter treatment

6 Introduction

can be found, for example, in the classical funeral oration, with Pericles’s speech

at the end of the first year of the Peloponnesian War being exemplary. There

we see, as Nicole Loraux argues, a dominance of the present and its cares, °6

The past, the Athenian past, is created in speech, a phantasm and artifice made

to serve present needs. For Plato, the civic funeral oration was a thinly veiled

kind of political sophistry, a worldly equivalent to the shadows cast on the cave

walls in book seven of the Republic.5’ The absence and presence of the past as

a shadowing can be understood in the following ways: (1) central to the tragic

cosmos, the real absence-presence of the dead and the injustices inflicted on them; (2) a view of shadowing as more psychological, the inner burden so to

speak of belonging to a community, whether a family or society (for example,

Hamlet or Macbeth); (3) the non-being of the past, together with its instru-

mentally confected (seeming) presence, the latter, as Plato saw belonging to the ambiguities of things not visible, such as the dead and “justice itself”: that they might be a real presence, an illusion or conversely a phantasm confected by

sophists. Hence their characteristically unstable status.

We noted the salience in tragedy of death and the passing of time. In the

preceding pages, I have sketched in broad strokes some of what that means for the concerns of this study. I now want to refine this account by drawing into it notions of justice, responsibility and vengeance. Allow me to begin with the dimension of this that might seem the most remote to a modern ethical imaginary: namely the idea of blood-guilt and the related but wider notion of pollution.*8 The Greek word for moral pollution (miasma), carries the sense of defilement, of being stained or fouled.*? Thus Electra calls her father’s killer miastor, one who is fouled or polluted by the spilled blood of Agamemnon.” The blood of the victim clings to and pollutes the hands of the murderer.” It is, at this first level, a way of speaking of the indelibleness, the ineradicability of a crime and so of the permanent union of victim and perpetrator in the staining of one with the other’s blood. And in being seen as polluted, it is closely related to shame, to being recognized as the befouled murderer in the eyes of others. Hence the need to hide the stain, to wash it out: “when we feel shame, we put

these out of the light—unfit for the sight of day.” “Out of the light”: there is a hiddenness about crime and the awareness

of it, a desire not to be seen, grounded no doubt in part in fear of the con- sequences of exposure but also in the recognition of one’s own defilement. Forgetting and blindness in these plays testify to the opaqueness of past crime, to its being there but out of sight.*? In some instances, the defilement is not initially visible even to the blood-stained character. “Where,” Oedipus asks, “shall the track (ichnos) of an ancient guilt . . . be found?”*4 As Oedipus himself later recognizes, his innocence of intention and his ignorance do not free him from guilt and defilement. Oedipus’s past is also his present: it casts a shadow, darkening his life even though the relevant parts of that past are not intentional actions.©

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Introduction 7

We can extend this to an understanding of miasma as staining not only the

immediate perpetrators but their communities and descendants as well. This

extension raises the issue of blood-pollution, of guilt transmitted to other persons and across generations, in a way particularly foreign and striking to

modern ethical sensibilities, tutored as we are in a vernacular form of Kantian

morality in which the quality of the will, its intentionality, is central to defin-

ing the moral character of the deed.#° Perhaps we can translate this notion of transmitted defilement as saying that just as the perpetrator’s life is indelibly

marked by the blood-stain, even when he is (like Oedipus) not the intentional

author of those acts, so those who share a community with him (his family, but

also his city*’) are burdened with this past. This in no way makes them culpable in a strict sense, under the terms of the civic justice, but it does gesture towards

the thought that as members of communities across time, the past and the dead

of that society are theirs too, enduring parts of their community, even in later

generations. It is theirs not in the sense of the guilt of the actual perpetrators

but rather as a weight, stain, or shadow.* Antigone, Electra, and Orestes are

not guilty (are not the authors) of the fate that is part of being members of their

households, but they are of that community and as such are stained by its past.

As Habermas writes about enduring German responsibility for the Holocaust: it is because “these singular crimes” took place “out of the middle of our lives

together” that post-war Germany remains accountable for them.’? This is col- lective responsibility, weaker than guilt but still going beyond the view that the

only defilement we incur arises from what we as individuals have done. I will

return to a further discussion of this later in these pages.

The idea of pollution testifies to an enduring moral community in which

responsibility extends over entire communities and across generations, one in

which the living and the dead are not residents of temporally bounded and

distinct societies but rather share a common moral world in an archipelago-like union of different but related generations. I turn now to another sense of pollu-

tion or defilement, one that focuses less on what is shared than on the singular

position of the victim. This is the thought that pollution in the classical litera- ture is the “anger of the victim, or of avenging spirits acting on his behalf.”°° The stain is here seen from the victim’s standpoint, as the indelible mark of

his blood union with the perpetrator, and of the imperative for that union to be addressed, either under the aegis of the law or of its wild kin, private ven-

geance. We said that pollution in this sense tells us of the enduring character of

the injury, a stain even when not visible. It also tells us of the persisting demand

for justice to be done, a demand that is the voice of the victim’s righteous anger,

calling for vengeance, for a just settling of accounts between the perpetrator

and victim.

Not unlike the earth absorbing all visible traces of blood, so too are those

unjustly dead, from the vantage point of a dominant present, “dust and noth-

ing.” They are as silent as their spilled blood is invisible. The idea of pollution,

Introduction

ever, suggests that death and temporal distance do not erase the crime or

moot the victim's need for justice. The shadows that: fall upon their

rr : homes are signs, the traces of that present absence, of blood and

ment and of a persisting and unanswered injustice. When Ocdipus asks

re shall the track of an ancient guilt be found?” we are meant, I think, to

stand that he is blind to the crime. It is invisible to him but nevertheless

‘something real. The reality of unacknowledged and unanswered crimes is testi-

fied to by the Furies, who in their insistence on justice for the victims, are their

agents, their ambassadors to the living. They make the victim visible, present

to us. The Furies then resist the invisibility of the spilled blood and the inac-

tion of justice, and in so doing they make present what is not available to sight

but exists nevertheless, and demand recognition of her. It requires the Furies,

a Tiresets; or a king’s swollen ankles to bear witness,*! in order for the crimes

to become visible, the victim’s cries for justice audible, and for the protagonists

themselves to be freed from blindness and forgetting.

From tragedy, then, we receive both the aporia and possible responses regard-

ing the. presence, the reality, of the dead as enduring subjects of justice. As we remarked, Sophocles’s Theban plays and Aeschylus’s Oresteia concern families

across generations, murder, blood pollution, or miasma, what we might term

moral taint, and above all the passion to see justice done. Both cycles of plays

dwell on the relationship between past and present in matters of justice. For that

reason memory too is central. Consider again this challenge posed by Electra,

daughter of the murdered Agamemnon: how can it be honorable, she asks

not to care for the dead? . . . For if the dead man is to lie there as dust and nothingness . . . and they are not to pay the penalty, murdered in their

turn, that would be the end of . . . the piety of all mortals.

To care for the dead means among other things that justice here requires that equivalence between perpetrator and victim be reestablished (antiphonos: “blood for blood”). But they will not pay nor will the victim be recognized as a claim- ant on justice if the dead are forgotten, rendered invisible, and thereby stripped of their standing as subjects of justice. Sophocles in this passage suggests that the forgotten victims of injustice are, through forgetting, reduced to “dust and nothing.” I read this to say that their relationships with those in the present are thereby severed, and not that their reality is, by our forgetting, extinguished. For as Sophocles’s Chorus says later in the play (lines 1420-1), “the blood of the killers flows in turn, drained by those who perished long ago.” Central then to bringing justice to the dead is the maintaining of their relations of solidar- ity with those in the present, and the response of those latter to the injustices inflicted on the victims. To act in answer to past injustice and its victims is one way to preserve a community of the past and present, to recognize and make present those who otherwise would be absent and silent. Forgetting, Electra

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Introduction 9

says, is a wrong and she criticizes her brother, Orestes, for having “[forgotten]

what he has learned.”*’ Of her sister, Chrysothemis, she says “It is terrible

that you, the daughter of your father, forget him.”°4 To forget is to betray

(prodidomi) him (Sophocles, Electra, line 368), to unravel a relationship, in this

example the relationship between a father and his child. The betrayal is two- fold: to forget one’s dead family members is to sever the bond between parents

and children, and so to be a traitor to the community woven of those bonds. It is also and relatedly to betray the demands of justice that are integral to that

community, here in relation to Agamemnon, this absent and silent victim.

Children are the voice of a dead parent’s salvation, drawing them up from the

depths of forgetting and absence.*> For the unjustly treated dead, the memory

of those closest to them (partially) answers their cry for justice by preserv-

ing their standing in the family community. It is an act of recognition. But

memory is also tied to revenge, which in this view completes justice: by kill- ing his mother, Orestes becomes the “champion [defender, advocate: arogos] of

the dead.”>° To be an advocate of dead men is to resist the process by which their absence

transforms them into “dust and nothing,” and to do this by securing them as

still members of their community and thus as persisting subjects of justice, and

not allowing their fates to go unanswered. It is in the first instance to “see”

(horath) something not present to the eyes (Electra, line 113), to recognize those

under the earth as claimants still on justice. The language of the dead, calling

out to their children from beneath the earth, beseeching them to remember and

act is, I would suggest, a way of saying that doing what is right by the exiled

victims of injustice belongs among our deepest duties in justice.°? When Anti-

gone says that she must “please those below’’® she means that in a related man-

ner remembrance (to sustain a community of solidarity with them) and justice

are something owed to the dead. Those gods “who look upon those wrongfully

done to death,” and “remembering [those] wrongs” must exact vengeance for

them.*? But it is not only the gods who look upon them: so also do those who

share a community with the dead, Electra and Orestes in relation to Agamem-

non, and Antigone and Ismene in relation to Polynices.

The Eriynes (“avengers of murder”) are the agents of laws that have life “not simply today and yesterday, but for ever.”®! The image of the Furies is

one of tormenting creatures, all-seeing, pursuing those who have polluted

themselves with familial blood.©? They haunt the world of the living. Their exacting of justice’s full due is not, to say the least, presented as if it was unam-

biguously good. The Furies’ effect in the world is in part an insertion into the

present of their unrelenting absorption in the past and its evils, Yet at the same

time they also have an austere purity: they are the voice of the dead, represent-

ing them to the living, and their agents, hunting down those who have treated

them unjustly and shed their blood. The adamantine pursuit of justice is above

all the refusal to allow that past to become a sealed well, the domain of “what

10 Introduction

had been done,” a refusal that drives their efforts to bring it and its attendant

ills into the present and among the living.

The appeal to set aside as obsessional the pursuit of justice for the past sug-

gests that the tragedians saw both the power of the claims articulated by Electra

and their costs across an array of other human goods and temporal registers.

This ambiguity is nicely picked out in one of that tradition’s recurring themes:

the radical enduringness, indeed the ineradicability, of the unjust deed. The

“death-heavy” house of Agamemnon and Clytaemestra visits its evils on the

children; the long stain spreads.®? Oedipus’s crimes, though unwitting, never-

theless pollute his land and children: no generation frees itself from the taint of

injustice within its own community.®+ Crimes (or blood crimes) here are virtu-

ally ineradicable: blood cannot be washed away, the killer’s flight never ceases.®©

From the standpoint of justice to the past, untempered by other human goods,

both the crime and the pursuit of just compensation for it endure regardless of

the consequences.

Here are some initial observations on the principal lines of argument we have

laid out in the preceding pages. We have suggested a sense in which we can

understand justice as being intimately related in a number of ways to the absent,

and especially in the vexing question about what justice and recognition are

owed to past persons. Though absent, the dead are not merely “dust and nothing”

but are rather bound to us in the present by the ties of our various associations

(political, familial, and so on) and the justice embedded in (or constituting)

those ties. By this path, we come to share a world with them. The world of

justice in other words is not composed only of the present and tangible but

of the absent and invisible as well, the past, which, though done and gone

nevertheless remains with us in traces, in the witness’s voice or simply in the

scandal we sense in their silence. In that latter regard, justice is engaged in a

kind of resistance to the corrosive effects of the passage of time,” a resistance to

abandoning the past and its wronged victims to the sealed well of absence and

silence. Later on, we will consider some contemporary parallels, but for the

moment suffice it to remark that the Furies, Electra, Antigone, and others do

this work in their capacity as voices of justice for the dead, and as their repre-

sentatives to the living.

In the study that follows, I will argue that doing justice is in an important

part an effort to deal with absence: that of the past and of the future as well. In

its retrospective exercise, it struggles to save the past from its sealed pastness,

and the dead from the anonymity and silence of the grave. It strives, in other

words, to abolish (in a limited way) the past’s/death’s absence, to give its victims

a represented presence in justice, and to offer them the recognition and response

in justice that is their due. This is the enduringness with which it is primarily

engaged: the persistence of unaddressed injustice, and of its victims, and of the

need to provide an answer to them. That enduringness is shaped by the condi-

tion of absence, the powerlessness of the dead, and of justice unanswered, of

Introduction 11

the “scandal of their silence.”®” Doing justice is then not only the work of the present, or future, but is oriented as well to an unacceptable absence and silence

of past victims of injustice.

“[The] Guilt Will Have Ceased to Be Visible’’®?

I now proceed to a more detailed discussion of the locale in the archipelago of

absence and presence that is most central to this study: the relationship between justice, death, and absence. In particular, I want to look more closely at how

we might understand the claim that an absent past and its denizens nevertheless remain a presence, not of flesh and blood of course but as claimants on justice,

shadowing and shaping the here and now, and owed justice and recognition.

Absence, the traces of the past and bearing witness as a manner of representing them will be my principal concerns in this section. To help frame this, I first

turn to Patrick Modiano’s Dora Bruder and Ralph Ellison’s Invisible Man. Both

of these works make vivid how absence, the past, its injustices and the dead,

and doing justice in the here and now are bound together. And they differ in

many respects, the most important distinction here being that one chronicles a relationship of solidarity between the dead and the living, whereas the other

depicts the rejection of just those relations across time and the resulting struggle

to recognize them.” Both therefore, in their different ways, address relations

between the living and the dead, silence and non-recognition, and solidarity.

Allow me to begin with Dora Bruder, an account of a young girl and the

person who bears witness to her life and death. In 1941, Dora Bruder was a

fifteen year old Parisian teenager, the child of working-class Jewish emigres

from Vienna and Budapest. In December of that year, she ran away from her

boarding school. Eight months later, she was detained by French authorities and

sent to the internment camp at Drancy. A short time after that, Dora Bruder

was deported to Auschwitz where she was murdered.”! Her parents were to meet the same end. They and their fate might have simply vanished had not

the traces of their presence found someone to be their witness. Some forty six years later, the French writer, Patrick Modiano, was browsing through old

issues of Paris-Soir and in the December 31, 1941, number he chanced upon this

announcement seeking information about a runaway: “Looking for a young

girl, Dora Bruder, 15 years old, oval face, brown-gray eyes... . Send any infor-

mation to Mr. and Mrs. Bruder, 41 boulevard Ornano, Paris.””

The announcement itself signaled an absence, which eventually motivated a search, one first initiated by her parent’s newspaper notice and taken up decades later in Modiano’s book. Dora Bruder: the name of the lost girl and the effort to

discover her fate.’> Modiano set out to learn what had become of this teenager and her parents. That search was to take him to locales that were part of both Bruder’s and Modiano’s lives: their neighborhood in Paris, to the no longer

standing boarding school she attended, and ultimately to the police archives.”

12 Introduction

In all these spaces, he writes, there was a sense of a palpable absence, of some-

one missing, an impression sharpened by the traces she left, even those now

almost entirely effaced.”> In the police archives, Modiano found documen- tary evidence of the family’s path to Auschwitz, and also hundreds of letters

from other families seeking the release of, or information on, their relatives in

French internment camps. None of these inquiries had been answered by the

authorities. Modiano writes that it is we who were not even alive in that epoch

who have become the “addressees” of these letters and their “guardians.””° It is as if their authors have an unbroken tie with the present, one that binds us to

them in relations of justice and obligation, an enduring connection of which

his book is itself one result. Modiano’s account conveys in a particularly striking manner the thought

that an absence is not a nullity, a mere emptiness, but is rather one of the ways

in which past persons remain a presence: not a physical presence of course, nor

one of the manifold dimensions of who they were while still alive, but subjects

of justice and in that capacity still enmeshed in relations with us. Here are a few further observations. (1) The author himself becomes the addressee of Dora

Bruder’s parents’ 1941 appeal in Paris-Soir. He reads their request for help in

finding their missing daughter, and dutifully answers it. Modiano could have

chosen not to respond to their request, because they were distant strangers,

or more radically and simply, dead and thus non-persons. Instead he becomes

the “guardian” of the dead, the preserver of their absent-presence, and their

representative to the living. (2) Modiano’s task is, in part, to individuate Dora

Bruder, to recognize her in the particularity that was her person, and that

perished with her. At the same time, his book affirms her enduring reality as

a subject of justice who suffered a gross wrong, and to do this in resistance to the solvent-like forces that threaten to overwhelm the presence of the dead

as claimants on justice. Beginning with her name as the title of the book, the

account of the physical traces in her neighborhood, her boarding school, and

the police archive documents: all are traces, visible signs of the invisible pres-

ence of a particular person, representations of a person being saved from the

oblivion of death and forgetting. Dora Bruder’s murderers radically separated her from the world of the living but could not sever entirely the bonds of justice

that keep her a claimant still.

(3) In that limited sense, Dora Bruder is present: invisibly and then repre-

sented, to be sure, but not therefore a mere confection. Modiano’s language is

of enduring traces, signs of presence that were there before he became aware

of them or of her.”’ Her presence is independent of him: he is not her maker

but her “guardian,” meaning in part her ambassador to the here and now, and

the “addressee” of her dead parents’ appeal for help. Yet Dora Bruder’s past-

ness and distance is evident in manifold ways, beginning with the gaps in our

knowledge of her. Temporal remoteness weakens our knowledge of persons,

and in those interstices are often concealed the secrets of the dead.”* Fictional

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Introduction 13

reconstruction can sometimes fill in these gaps, but in so doing they bring

memory and imagination into close proximity and thereby raise the possibility

that haunts our relationship to the past and its dead: that this relationship-in- absence is closer to literary imagination than it is to relations between actual subjects.’”? (4) Answering the call to represent the dead victim of injustice has

at its foundation a persisting relationship of moral obligation in the context

of an enduring community. (5) If in part Dora Bruder is to be found in the

memory traces of her particularity (documents, lived spaces, the marks on the

world left by her having been here), her presence is (as we suggested) located

in her standing as a member of the community, person and subject of justice

with a claim on that community, that it act as the guarantor and representative

of that part of what she is. That second facet does not individuate her but

rather describes one pole of an enduring, across-time relationship between us

and the dead, a relationship that yields the demand for recognition and justice. In different words, it describes what remains of the person even after death has

reduced her particularity to the memories of those close to her and to a handful

of material traces. And that, in Modiano’s account, is her status as a certain kind

of subject and enduring claimant.

We have discussed absence and invisibility in Dora Bruder as something embed-

ded in a normative framework persisting across time that binds not just the

living among themselves but together the living, the dead and future persons. The silence and the invisibility of the dead seem to give rise to an obligation to

represent them and in so doing to make them in a way visible or present, and to

answer their demand for recognition of the injustice done them. Invisibility can

thus be a challenge to justice: what is unavailable to sight and direct experience

and what is not recognized as a person, the invisible, the disappeared, those lost

to the “night and fog.’®° Domination and injustice can render the weak and

vulnerable invisible as persons and subjects of justice,®! and they can ensure at least for a time that the dead are silent and invisible, denied our recognition of

them and their fate.

Sometimes these two kinds of invisibility, that of past persons and of unrec-

ognized living persons overlap, and are causally related. That layered approach

to absence and invisibility, past and present, can be found in Ralph Ellison’s

immensely rich study of persons not seen, Invisible Man.*? There the absent past

and its dead and the invisible among the living, their relationship, and the importance of recognition to justice are central.

In the pages that follow, I am once more concerned with the relationship

between justice, visibility, and invisibility, and in particular with the presence

of past injustice in the here and now. Here I follow Ellison into the history

of race in America, embodied in the visibility/invisibility of color. The vis-

ibility of color would seem to make it a daily and enduring reminder of the

intertwined history and present actuality of racial injustice, and in this way to

be intimately a part of American memory and identity. Yet the tie between

14 Introduction

memory and color is anything but certain or transparent. Rather, as I shall

argue (with Ellison), it is a latticework composed of things remembered, for-

gotten, glossed or idealized, things invisible but sometimes saved from obliv-

ion by the traces they leave in our world and by those who bear witness to

them. Finally, color, memory, and identity together belong to the struggle over

racial justice in America, a battle in part to recognize the past and its unjustly

treated. Ellison’s writings, and particularly his Invisible Man, explore and map

these issues.®?

The Invisible Man begins with this epigraph, a passage from Herman Mel-

ville’s Benito Cereno: “You are saved,’ cried Captain Delano, more and more

astonished and pained: ‘you are saved: what has cast such a shadow upon you?’”**

To be saved, alive yet still to be in the shadows. In Melville’s story, Delano, an

American, makes this remark urging Benito Cereno to forget the past, just (he

says) as the sun, sea, and sky “have turned over new leaves.” Cereno answers

that the sea and sky “have no memory . . . because they are not human.” To be

fully human is to dwell in the extension of time, bound to a past and looking

forward to, anticipating, a possible future.®5 The shadow here is cast by the past,

kept present in the memory of a slave revolt on his ship, or perhaps a memory

of slavery as such. Delano’s appeal to turn away from the past expresses an opti-

mism, and a future-directed gaze, made possible in part by forgetting.®® Ellison

too wrote of shadows, and in particular “the shadow of [the] past.”8? His choice

of these lines from Melville suggests that central to Ellison's understanding of

justice in America is the presence of the past, the shadows it casts, the resulting

temptation to forget, and the relationship of that to the future. “To be saved:”

the Civil War, the Emancipation Proclamation, the civil rights struggle, the

ending of legal segregation, and so on all had brought African Americans more

fully into their country’s political and economic life. Yet, and at the same time,

race and its history remain a powerful and often troubling presence, whether

in the lingering and observable effects of past discriminatory policies, in con-

troversies over Confederate war memorials, and in ongoing debates over doing

justice to this past. That shadow is also the work of the haunting presence of

past injustices and their victims. The view that the past should not weigh on

the present must inevitably confront the fact that those centuries of injustice,

incompletely (or not at all) answered, have not vanished but on the contrary

continue to stain America, however much the institutionalized forms of race

relations may have changed, and however much, like Delano, some might wish

to put the past “behind them.” This Melville passage tells us that the will to

forget, the orientation to the future, and the insistent presence of the past are

central and sometimes conflicting moments of the long struggle for justice.

“The act of writing,” Ellison said, “requires a constant plunging back into

the shadow of the past where time hovers ghostlike.”®* In the Invisible Man, that

maxim also guides the account of the particularity of the African American

experience. Plainly his understanding of that experience rests on the thought

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Introduction 15

that it belongs to an enduring community with a past of injustice; a heritage,

binding past and present in relations of solidarity and obligation, with color

as a reminder of that community, its past and present.®? It is also and crucially

a reminder of how forgetting can render all that invisible and unrecognized,

hiding past injustice and its victims from view, thereby injuring them again,

while at the same time it shelters and sustains present injustice. Ellison’s work,

his act of writing, dedicated to the place of memory and justice in American life, turns to that community, to its past and present. Not only past and present,

but past and future, those two locales on the archipelago of absence, are related

in Ellison’s account. Asked if his work embodied a too rosy optimism, Ellison

responded that “hope and aspiration are indeed important aspects of the reality

of Negro American history.”°? Hope and waiting, though, were always wed- ded to the fact that African American “consciousness . . . is a product of our

memory” and not of “a will to historical forgetfulness.”°! American optimism,

on the other hand, emerges out of forgetting, a making invisible of its own past.

Its sunny disposition is made possible by ignoring the shadows. Remembering

on the other hand does not foreclose the future, though it may moderate our

optimism about its possibilities. What it also does is to recognize the standing

in justice of the past and in so doing to affirm that the horizon of just relations

extends beyond those in the present, to persons past, and if to them who are

not denizens of the here and now then perhaps also to the future, to those yet to be. Ellison’s writing embraces the three principal locales on the archipelago

of past, present and future. “We don’t remember enough; we don’t allow ourselves to remember events,

and I suppose this helps us to continue our beliefin progress.””” Ellison answered

this with a concern for the enduring presence of the African American past,

and for the place of memory in identity and in justice. Justice called for a deal-

ing with the past but it also tempered that retrospective glance by binding it to

“hope and aspiration,” to what Ellison termed a “watchful waiting.” It is not a window into a distant world but rather an insistence on the past’s continued

presence, and on the crucial importance of acknowledging it. In the words of

T.S. Eliot’s Four Quartets with which Ellison begins Juneteenth:

This is the use of memory: For liberation. . . . From the future as well

as the past... . See, now they vanish, The faces and places, with the self

which, as it could, loved them, To become renewed, transfigured, in

another pattern.”

One does not triumph over the other: the weight of the past is not lifted, but the shadow it casts does not overwhelm the watchful waiting for the future. Rather, memory and hope, past and future, race and American democratic life

are all to be seen there. Ellison thought that, in the end, the core American

failing was a flight from the burdens of its own past, and from the manifold

16 Introduction

interactions of past and present, including rendering African Americans invis-

ible. Exiling that past to a sealed well of absence was the flaw he wanted to

bring into the light of day.

America’s relationship to its own past is intermingled with forgetting and

distortion, its innocence not innocent at all, but rather a making invisible of

injustice.°* Amnesia, in brief, is related centrally for Ellison to the injustices of

the American past and present.

Perhaps more than any other people, Americans have been-locked in a

deadly struggle with time, with history. We've fled the past and trained

ourselves to suppress, if not forget, troublesome details of the national

memory, and a great part of our optimism. . . has been bought at the

cost of ignoring the processes through which we've arrived at any given

moment of our national existence.”

This forgetting renders past injustices and their victims invisible. In so doing,

we foreclose the possibility of recognizing them as persons who, treated with

savage injustice, now stand as claimants, asking to be recognized for the per-

sons and subjects of justice they were/are. Their relationship to those in the

present is thereby also altered: the ties of solidarity across time are rejected,

the threads binding them as members of the community loosed. And thus they

cease to be subjects in an enduring community of justice but instead are con-

signed to the oblivion of the forgotten.

The invisibility of the present tense narrator of the Invisible Man is bound

up with this erasure of his community’s past. Color is that most visible sign of

past and present injustices, but stripped of its meaning, it and its bearers are

thereby rendered in a radical sense invisible, men and women without charac-

teristics, community or identity. Such forgetting is itself an injustice, and that

for a number of reasons. As we have just suggested, it consigns past victims of

injustice to their unanswered, unacknowledged, fates and in so doing it loos-

ens our ties to them. The invisible past of injustice affects the present too. To

know who one is, or who we are in the plural and as a community, is in part

to know one’s past. The forgetfulness of American life, born of its scarred past

and its absorption in the present and future, and its intertwining of amnesia,

partial remembrance and misplaced innocence, makes that past something out

of sight. America has been “been reluctant,” Ellison writes, “to pay the cost

of its achievement” and hence the resulting injustice, forgetfulness and distor-

tion.® Forgetfulness achieves a radical kind of dispossession, that of denying

recognition to a community and its members, past and present: to their stories,

names, history, to their standing as subjects of justice. It makes them invisible

men and women. Thus, with that forgetting and innocence comes a flawed and

distorted relationship to the community’s past and present: a non-recognition

of their standing and of the claims of that community.”

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introduction 17

For all of the inattention to, and fleeing from, the past that characterize

much of American life, Ellison’s account suggests that the past and its denizens

in all their manifoldness nevertheless endure, if only obscurely, or obliquely, in

the shadows and around the corners of the most ordinary phenomena of our

lives together. Indeed, implicit in the idea of a flight from the past, and of the

counter-struggle to bring it into the full light of day, is the acknowledgment

that even with the “limited attention” accorded the past this does not mean

that it and its denizens have simply vanished. The past and its people are there,

if subterraneanly, in the everydayness of American life; and the demand that

the injustices done them be recognized and answered awaits a representative

to give them voice. That continued presence means that forgetting, and the

relief it promises from the burdens of the past, are always merely provisional,

and therefore vulnerable especially to an unwilled resurgence of the past into

its midst, to (in Baldwin’s phrase) a “dangerous and reverberating silence,” and

to the shadows cast by race on American life.® Were the past simply done and

gone (or if it could be made so), it would not be the troubling presence that it is.

And so some seek a “compromise with truth in the past in order to make peace

in the present and guide policy in the future.””° Still, the presence of the past,

forgotten though it may be in the foreground of citizens’ lives and in their offi-

cial narratives, is an enduring reality. That “unwritten history,” that “obscure

alter ego,” is “always active in the shaping of events . . . always with us.” There,

“in the underground of unwritten history, much of that which is ignored defies

our inattention by continuing to grow and have consequences.”'° The past,

though fragmented and dotted with forgetting and distortion, is nevertheless

carried forward in its traces, color being central among them, always threaten-

ing to intrude, Fury-like, upon and upset a self-understanding fashioned out of

a mixture of amnesia and comforting narratives.

“The guilt will have ceased to be visible.”!°! That the past stands around the

corner, invisible and absent, there in traces and echoes but not seen or recog-

nized for what it was and is, is itself a mark of the injustice of dispossession. We

are familiar with this in Du Bois’s and Baldwin’s critiques of the writing and

teaching of American history. Ellison, because his focus is on the vernacular of

color, does not portray dispossession in the higher registers of remembrance,

civic history for example, but rather presents it in its everydayness. Like that

loss itself, his story is a kaleidoscope of fragments, the meaning and relatedness

of which seem to emerge almost haphazardly and without being willed, mir-

roring the way he sees them as experienced. The varied facets of this disposses-

sion are revealed in a swirl of discrete episodes, connected only by the narrator’s

voice and vantage point.!°? They are woven together inasmuch as they belong

to a black (and therefore, in America, invisible) man. Their unity in other words

is dispossession as an erasure of the past.

In our discussion of Modiano’s Dora Bruder, we remarked on the importance

of restoring names to those who disappeared into the night and fog of acts of

18 = Introduction

grave injustice. The title itself of his book bears witness to that imperative.

Consider now what is one of the most powerful aspects of dispossession in Elli-

son’s Invisible Man; the narrator’s namelessness. That loss is at once individual

and collective: of names as individuating markers and as part of a community’s

fate, that of being black in America. “It is through names,” he remarks else-

where, “that we first place ourselves in the world.” They are “our masks and

our shields and the containers of all those values and traditions which we learn

and/or imagine as being the meaning of our familial past.”"°* Names then are

signs, traces, of a past, a thread of a continuity through time, of family relations

across the long duration. For African Americans, Ellison writes, this temporal-

relational quality of names is bittersweet. “We bear, as Negroes, names origi-

nally possessed by those who owned our enslaved grandparents, we are apt. . .

to be more than ordinarily concerned with the veiled and mysterious events,

the fusions of blood, the furtive couplings, the violations of faith and loyalty . . .

through which our names were handed down unto us.”!°* Looking around this

corner is, Ellison writes, “charged with emotion” because names here make

present a past of servitude at the most intimate, familial, level. He adds that

some reject their names, bearers as these latter are of a “bloodstained,” “brutal”

and “sinful” past. The narrator of the Invisible Man fears the forgetting of his

own name: “A tremor shook me... and I was overcome with swift shame. I

realized that I no longer knew my own name.” To forget your name, even

an imposed one, is to lose a part of who you are, of your past and therefore of

your identity:

Who am I? I asked myself. But it was like trying to identify one particular

cell that coursed through the torpid veins of my body..... WHAT IS

YOUR MOTHER’S NAME? Mother, who was my mother? ... Where

were you born? Try to think of your name.

Names both individuate persons and identify them as members of a temporally

extended community. They bind her in the present to others now gone, to their

histories, deeds, and fates as enduring parts of who she is. On the other hand, to

be nameless is to lose one of the markers by which “we first place ourselves in

the world.” The loss of one’s name is a way of being made invisible, of making

one’s past “blank.” The reader, like the narrator of the Invisible Man, is thereby

led to sense the injustice of being given a new name and identity. ““This is your

new identity,’ Brother Jack said. ‘Open it.’ Inside I found a name written on a

slip of paper. ‘That is your new name,’ Brother Jack said.”!°’ The context of this

passage is the need for secrecy in a clandestine organization, but its proximity

to the practice of renaming African American slaves places it on the wider can-

vas of the Invisible Man where it joins other reflections on loss, invisibility, and

forgetting. If names are among the traces of one’s place in the world across time

and in common with other people, one can understand why being assigned a

new name is so disturbing. It is a wrong because names are not just functional

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Introduction 19

markers, substitutable by any other sign, but part of a person’s identity, weaving

together past, present, and future.

Dispossession, forgetting, being given a new name, and stripping color of

its informing memory all sever that connection between who one is and was,

deny recognition to both persons and groups, and unravel the fabric that holds

together the community across time.’”8 Consider this further illustration of

dispossession as a severing of bonds with the past. The protagonist of the Invis-

ible Man encounters the scattered possessions of an African American family

evicted from their dwelling. There, lying in the snow, are a greeting card, a

manumission document, photographs, and a yellowing newspaper portrait of

Marcus Garvey. The scene has a special melancholy about it, arising out of the

sense of loss that surrounds such jettisoned mementos, visible traces of and ties to the community’s past. These objects are reminders of a past, the common

past of a family or community. The sight of them, torn from their contexts,

tossed into the street like so much detritus, is a harm because it threatens to

unravel the threads of continuity binding present and past members of the

community. As we remarked earlier, the injury to the living can be seen in

the invisibility of the novel’s present tense narrator, which is closely related to

the erasure of his community’s past. It is also an injury to members of that past

community, which instead of being recognized as fellow subjects of justice is

treated as if they were nonexistent. It is then an affront to the civic dignity of

both the living and the dead.

Now the “jumble” of these objects belongs to someone else and not to

the narrator of the Invisible Man. They are the material vessels of the particu-

lar continuity of that one family, intimations of its persistence. Why then do

they awaken such a reaction in him, a response that leads him to look away from what is before his eyes and to turn to “the dark, far-away-and-long- ago”?! Part of the answer is surely the palpable wrongness of it: the sight of

an evicted family and its most precious possessions cast like trifles onto the wintry street.!!° The wider injustice, which the narrator senses as one source of

his own present-tense invisibility, and which therefore embraces him too in its evocative grasp, is evident in the neglect of African American history, its past

scattered and made into a loosely knit patchwork of the forgotten, idealized

and remembered. The eviction is twofold: in the present, it attempts to deny a

people their past, a past that lives on in the injustices of the here and now. At the

same time, and relatedly, it glosses over injuries to past members of this com-

munity, treating the victims of these injustices as if they counted for nothing,

not even worth the repair of remembrance. The disarray of objects (themselves

threads weaving together past and present) in the snow expresses a rejection of

our relationship of remembering solidarity with those past persons and their

present inheritors.

The namelessness of the narrator, the story’s depiction of a family’s memen-

toes strewn on the pavement, of the ache left by the barely recollected world of

past humiliations, and of the disjointed way in which the past is made present to

20 = Introduction

the novel’s protagonist are the marks ofa particular and radical form of loss, one

which afflicts individuals as part of a community, making their past and present

invisible, and threatening to untie the fabric of their continuity as members of

a persisting community. As Ellison’s account makes clear, the losses of a home:

land, language, and religion are a prelude to the ongoing dispossession of the

African American past. And that is intimately related to invisibility and non-

recognition. Who we are, persons embedded in an enduring community, 1s net

just a point-like present but a duration across time, a past, present and future. It

is to have a name, memory-bearing objects, recollections that are the warp and

woof of personhood, and to have these as visible, that is, recognized by others.

To be separated from one’s past, to have to ask “Who was I, how had I come

to be?!" is in key respects to be invisible to others, to stand unrecognized as

on and citizen.'” .

ee The loss of a past (made invisible and unrecognized) is then bound up with

the invisibility of present persons, and the denial of recognition to them. Th

they suffer as individuals and as a community. That past can however be restore

to them in manifold ways. It is not always or even first and foremost con-

structed out of remembrance’s explicit variants: histories, civic texts, and so on.

The presence of that past (or of parts of it) is there in the habits of the heart, me

ways of life of a community, expressed and encountered in its many vernacular

forms. It is there too in the shadows or around the corners, there in an almost

subterranean fashion reflected in that “undergrounding of American history

so crucial to the Invisible Man.'"? If “we are prevented from knowing who we

are,” that is even if the past is not part of the recorded story of the nation (or

at the individual level, the family for example) it is nevertheless “always active

in the shaping of events. It is always with us.”!!4 The past, he argues elsewhere,

makes Americans what they are, and that is something that cannot be buried,

cannot be consigned once and for all to an underground remote and hidden

forever. It cannot be hidden because it endures, if sometimes only around the

corners and in the shadows. “We do not bury the past,” Ellison writes, because

it is within us.’"!3 But we most certainly can render it invisible and cause it to

languish unrecognized, both its past denizens and its present bearers. Because

“it is -within us” we in the present are harmed by its invisibility, which is also

therefore ours. And because the past endures in us and in our solidarity across

time, those past persons are still subjects of justice, harmed by the oblivion of

forgetting. .

“With us” and “within us,” a “shadow,” an “obscure alter ego, always

active in the shaping of events:” the Invisible Man lives with an eye oriented

to the intersection of past and present, the dead and the living. That junction

is not so much a frontier between two distinct temporal registers as a meeting

place in which the past lurks in the present. The reason for this orientation is

that Ellison was certain that what he termed “the American theme was at its

core bound up with continuity across time and thus with the living presence of

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Introduction 21

the past. In Ellison’s work, the present and future are not free-standing but on the contrary are informed by the past, just as that past is (in T.S. Eliot’s words, quoted by Ellison) “renewed, transfigured, in another pattern.” He was also

certain that modernity’s penchant for a forgetful presentism, exacerbated in

America by the burden of a past and present severely tainted by racial injustice,

made that presence of the past fragile and sometimes nearly invisible, and with

that its present bearers unrecognized and therefore invisible too.

Traces of injustice, in small things remembered: we noted that the trace

stands at the frontier between absence and presence.!® There among the visible, it is a pointer to something lying out of sight, around the corner. Recall the

Invisible Man’s protagonist happening upon the belongings of an evicted family.

The scattered possessions lying at his feet are both an instance of, and an evoca-

tive pointing to, dispossession. The power of that moment however comes not

only from its attack on a shared dignity as members of a community but also

from the fact that the mementoes on the street act as a trace. Traces are bridges

across time. They are the markers, the presence that intimates an absent or

missing something, there if only inchoately. So he is drawn by these traces “to

look around corners,” in this case into his own past (which is also theirs), into

the past “of remembered words, of linked verbal echoes, images, heard even

when not listening at home.””!!” The narrator says that he experienced this “as though I myself was being dispossessed of some painful yet precious thing. . . .

And with this sense of dispossession came a pang of vague recognition: this

junk ... all throbbed within me with more meaning than there should have

been.”''8 In brief, happening upon this scene of eviction and dispossession, his

own memory (linked to it by an implicit mesh of connections) is awakened, and

their loss bound to his own and to those of the African American community.

Witnessing this begins the process of making visible the invisible, the lost or in disarray. It discloses the past (individual/shared) as the first step towards a

securing of justice and recognition for both the past and present.!!? The mate-

rial items strewn on the snow are traces at the frontier between presence and

absence. They are the representations of an absence and at the same time (and

relatedly) the wind in the narrator’s sails urging him to restore the past from

its condition of almost being lost. Those traces are the proximate cause of his wanting to look around the corner. Traces however are not simply tokens of a

present-absence, of the shadows cast by something out of sight, curiosities for

Nietzsche’s “jaded idlers in the garden of knowledge.” Rather these traces, in

order to loosen the passerby from his forgetfulness, must draw him closer and

towards the absence of which they are the signs. They reveal absence as a miss-

ing something, and not simply a void or nullity. In so doing, they intimate or

recall a relationship, a mesh, between the observer and those past persons who

are, in a manner of speaking, “around the corners.” In the case of the Invisible

Man and its story of the narrator’s encounter with the belongings thrown on to

the street, the thread binding him to that sight is the shared fate of dispossession,

22 Introduction

both in the immediate sense apparent to his eyes, ie., the aftermath of evic-

tion, and in another more oblique sense as well, the loss of the past, theirs and

his, that is part of being black in America. The moment of recognition depends

upon a next-to-invisible (rendered invisible) cluster of ties between that fam-

ily, the narrator, and America. In the end, however, it 1s the narrator of the

Invisible Man who (like Modiano for Dora Bruder) becomes the representative,

the “addressee,” and the “guarantor” of past persons expressed through those

material traces. The past and its traces need witnesses, representatives, to make

them visible to the community, and that is to say that the past persons of whom

they are signs need a witness to make them present and visible again. .

The traces that the protagonist chances upon on that snowy sidewalk,

at the border between absence and restoration, forgetfulness and recognition,

silence and justice are at the heart of Ellison’s account of race and invisibility.

Race, its past and the injustices associated with it linger in Ellison's work, like

those mementoes on the wintry street, at the frontier between visibility and

invisibility. His emphasis is on the not-quite-visible, on forgetting and erasure,

on the dispossession of the past evident in the street scene that the narrator

witnesses. Yet at the same time, the protagonist’s response to seeing this is to

be drawn to look around the corner, to recall and make the absent visible. To

bear witness, to be a guardian and representative of their past and its people, is

to testify to it, so that it is no longer invisible. And in so doing he ceases to be

invisible himself. What is achieved thereby is not, in the first instance, that we

now come to see and know what before was unknown, but that the recognition

of this community and its members, past and present, is restored to them, who

previously languished “underground” and “around corners.”

Traces, including color, are as we said evocative: things that urge the pass-

erby to pay them heed and to look beyond what is there before his eyes. In

the depiction of the evicted family and its scattered belongings, the narrator is

drawn to gaze around the corner and this not so much by a willed choice but by

a throbbing in him, by memories of distant voices “verbal echoes, images, heard

even when not listening at home.”””° Through traces, the invisible becomes at

least partially available. We have discussed the ways in which, in the Invisible

Man, the family’s scattered possessions serve as traces of an absent past, and sO

point to the unity ofa community across time. “Memory from the long time

before it even became his memory.”!?! The small currency of everyday social

interactions acts as a pointer to those just around the corner. They gesture

towards a past that may well not be recorded in the public narratives of this

society, to what is not even a part of its consciously-held memory, but which is

real nevertheless. “It means nothing to say that it is all forgotten, that the Negro

himself has forgotten it... . The man does not remember the hand that struck

him, the darkness that frightened him, asa child; nevertheless, the hand and the

darkness remain with him, indivisible from himself forever.”!?? Injustices start

.

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Introduction 23

to become visible in the small things remembered: a family’s scattered posses-

sions, the smell of food cooking, a personal encounter in someone’s home. All

are traces, directing us to someone there, a person wronged, but in the shadows

of forgetting and thus not entirely visible.

In the midst of this story of loss and dispossession, of silence and obscu-

rity, Ellison’s account lingers over these traces of a past dwelling in the small

things of everyday life. The “transitory ones” with “no novels, histories or

other books” do have a past, even if it is “undergrounded” and their status as persons and members of the community unrecognized. James Deetz, writing

about the significance of material culture and black history, says that “African American archaeology . . . holds the promise of bringing people who had been

marginalized in the writings of their contemporaries back into the picture.”!” That past, the “unwritten” or “underground” history of African Americans

urges itself upon this society and yet is often only indirectly visible. “It is always

with us, questioning even when not accusing.”!** So the past both dwells in the obscurity of the shadows (of forgetting, non-recognition, loss) and itself casts

a shadow of another kind (disturbing, questioning, accusing) over a compla-

cent and forgetful present. That past is pervasive, inflecting “our definition as

Americans ... the way we walk, talk and move” and defying “our inattention

by continuing to grow and have consequences.”’”* It both lives in the shad- ows of forgetfulness, “undergrounded,” and occasionally when it is more than

latently present, it quits the shadows and intrudes upon the comfortable pres-

ent. These intrusions are at the same time calls to bear witness, to look around

the corner, to “confront, to peer into, the shadow of [the] past.”!?° That is the

evocative function of the traces scattered, kaleidoscope-like, throughout the

Invisible Man. They mark out an uneven social landscape in which the past pro- trudes, incompletely but insistently, into the here and now. Traces, in short, do

not so much reveal the truth of who one is and was, visible in the full light of day, but rather direct the person back to what lies around the corner, there but

not (yet) before one’s eyes.

The border between the shadows of the forgotten or dispossessed past and

the present, and their denizens, the dead and the living, are at the heart of Elli-

son’s account of the relationship between the invisibility, the non-recognition,

of the past and its profound wrongs, and non-recognition of African~Americans in the present. “But first I had to discover,” Ellison writes, “that J am an invis-

ible man,” to “[recognize] my invisibility,” that is to see absence as an absence

of something and not as a mere emptiness.'?” How does this recognition occur? It cannot be brought into being simply by contact with the failed “inner eyes”

of those around him, for whom he is in a certain sense both highly visible yet in

another way quite invisible. There he finds (as did Du Bois and Baldwin) only

emptiness, and in that vacant encounter lies at least a part of the “racial condi- tioning” that is a principal source of the narrator's invisibility to himself and

24 Introduction

others, !28 Ellison describes this coming of recognition as act of looking around

corners, a looking that awakens the past and binds it to the present.

And now all past humiliations became precious parts of my experience,

and for the first time. . . . I began to accept my past and, as I accepted

it, I felt memories welling up within me. It was as though I'd suddenly

learned to look around corners; images of past humiliations flickered

through my head and I saw that they were more than separate experi-

ences. They were me; they defined me. I was my experiences and my

experiences were me, and no blind men, no matter how powerful they

became .. . could take that [from me].'”°

Those words tell us that the absent past is what is being looked for, and with

it, a part of one’s identity, of one’s place in the enduring fabric of a community

and its subjects, past, present, and future. Ellison’s phrase also suggests a desire,

a need to look, driven not by the insistent and manifest presence of something,

such as a monument inscribed “Remember!” but on the contrary by its sensed

absence, there but not visible; there but forgotten, and not recognized. Out of

that intimation comes a desire to restore the wholeness of a community arrayed

across time. The relationship between justice and identity, the living and the

dead, memory and the past is of an “around the corners” kind: what is hidden,

or on the verge of disappearance, what is therefore sought and if recovered held

on to by memory in its guarding capacity. Absence, traces, and those bearing

witness: these are the three guiding threads of Ellison’s reflections on race,

time, and justice. Looking around the corner, drawn by traces to see what is

there but not or not yet wholly visible, is to be called to that past, and through

bearing witness to its scattered shards to begin the work of doing justice as

recognition, °°

The Invisible Man is in part a story of remembrance and solidarity across

generations, and thus of resistance to allowing amnesia to sever the fabric of

relations between the community’s present and past persons.'*! In its pages,

we never see race directly in its most evident, visual, form of color nor in

the novel’s attention to the past are we ever explicitly called to the remembrance

of color, Rather, and because of its undergrounded presence, readers (like the

story’s narrator) are led circuitously to the meaning of color’s sign-like role and

through that to the recognition (visibility) of their past and present. We readers

are directed to what may be just out of sight, there in traces, to those things,

smells, passing social encounters that are given in the full light of day, so to

speak, but which point to what lies in the shadows, around the corner, under-

grounded, there but out of sight in the realm of the forgotten. The narrator’s

blackness comes to be known not through sight or explicit depiction but in the

small things of his daily life, in objects and persons both absent and present. So

the readers and the narrator of the Invisible Man encounter the color of memory,

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Introduction 25

of race and injustice, as something lingering, incompletely ingathered. They are never entirely brought out from the underground, where in America they are consigned by acts of forgetting and dispossession. Yet they are, in a way, always

present, in the traces that punctuate the everyday flow of life, fragments “ques-

tioning even when not accusing.” In the recollections that those traces evoke, Ellison shows the color of memory, the memories that belong to being black in

America, not as something given, and together with its significance, ready-to-

hand, but rather as something present in myriad often shadowed ways, distorted by forgetting and idealization.

Ellison emphasizes the struggle, the imperative, to resist a forgetful dispos-

session where “‘high visibility’ actually rendered one un-visible.”!°? Dispossession of the past denies the reality of both past and present injustice, and refuses rec-

ognition to the victims (both the living and the dead) of those injustices. Color

can be made nearly invisible, “blank,” so that “the past [is] . . . thoroughly

washed from the black face . . . [and thus] guilt will have ceased to be visible.?'5 The color of memory does not effortlessly bring to the narrator of the Invisible

Man the manifold ties that bind who he is now to who he was (and who they

were), and to who he is as a member of a community with the particular past it

has. In that sense, he is invisible to himself and to others. Ellison’s protagonist

must rather happen upon traces, and through these traces be led to the struggle

to look around corners. He must in the end also do the work of restoring a

unity to them, and thereby to the past they gesture towards, to gather into an

identity these scattered, glossed over, or forgotten elements of what he and the

community of which he is a part were and are: in Ellison’s phrase, to “know

who we are.”!4

Conclusion

Ellison’s Invisible Man, like Modiano’s Dora Bruder, captures central parts of

what we have called the archipelago of absence, that collection of temporal

locales, free-standing but nevertheless related in varying ways and degrees to

one another, where absence and visibility, the dead and the living, justice and

recognition, memory and forgetting intersect. Consider now, by way of sum-

mation, these principal thematic lines.

(1) Dora Bruder and the Invisible Man both explore the presence of the past, of

past injustice and its victims, and their imprint on our world. It is present

in calls for justice to be done to victims of past injustice; sometimes it is

preserved in remembrance; on other occasions however it persists without

our having the slightest awareness of it, there in material traces and more broadly in the habits of the heart of a community. James Baldwin writes:

“It is not a question of memory. Oedipus did not remember the thongs

that bound his feet; nevertheless the marks they left testified to that doom

26

(3)

Introduction

toward which his feet were leading him.”!> We saw this too in Ellison’s

novel: past injustices and their victims endure and not only as slowly disap-

pearing impressions stored in collective memory. Ellison’s story centers around the invisibility of both the narrator, living in

the present, and of the past community and its once-living members. It is

clear that the notion of invisibility does multiple kinds of work here. The protagonist’s invisibility consists in a distorted and incomplete relation to

the past, and a present failure to accord him recognition. The invisibility of

the past is a condition of being scattered, of a community the ties of which

across time are undone by the multiple corrosive forces brought to bear on

the mesh of relations binding present and past. We see that scattered qual-

ity of our relation to past persons in the memorabilia strewn on the snowy

street in Invisible Man. It is there too in Modiano’s Dora Bruder, where the

evidentiary tokens of her presence need to be reconstructed into a coher- ent narrative that, even then Modiano says, is marked by undecipherable

secrets and gaps.

In the Invisible Man, the narrator’s invisibility is not something related to

the eyes/knowledge of his contemporaries but is rather the result of their

refusal, as Honneth argues, to recognize him, and the enduring commu-

nity to which he belongs, to allow that he (and earlier members of his com-

munity) has an intrinsic dignity as a person and citizen.’°° Two meanings of non-recognition can be discerned here:!*’ one kind of failure to recog- nize is linked to an ordinary type of invisibility as the unexperienced, the steady erosion of the world of yesterday, the receding into oblivion and

unknowability of the once present. A second kind of non-recognition 1s

the refusal to acknowledge the equal dignity of other persons, and in that

moral sense, fail to see them, whether as equal citizens or, as with Kant,

as persons.!*8 Here invisibility and non-recognition amount to a denial of standing as persons and fellow citizens, as subjects of justice. In the Invisible

Man, the invisibility of the past and its denizens and that of the present-

day narrator are intimately linked. The failure to acknowledge the gross

injustices of slavery and segregation is rooted in the same soil as the blind-

ness to the narrator’s existence in the here and now. Neither failure is epis-

temological in character. Rather both are refusals to grant recognition, to

acknowledge them as grievously wronged members of the community. On the other hand, the unknown in Dora Bruder’s story is a kind of loss related

to the erosion that death and the passage of time bring in their wake. Modiano’s book is itself an act of resisting those forces, of making visible by

recognizing the presence and standing of this victim of historical injustice.

Recognition is in the first instance the act of making morally-politically

visible those who have disappeared in the archipelago of absence. It is seeing

the formerly invisible ones (marginalized, disappeared) as beings endowed

with a dignity and standing in the here and now as claimants on justice,

Introduction 27

owed a response, beginning with this act of noticing and recognition itself. They are subjects then of a particular kind, with whom we have a type of

relationship that includes just recognition.

Both Ellison and Modiano dwell on traces. Here again, traces are a form of

evidence, visible signs or icons of the reality of something or someone not

themselves visible to the eye. In that sense, traces are counters to the error

most commonly associated with our relationship to what is not visible:

the apparent certainty that what is not available to sensory experience has

no kind of existence whatsoever. Traces are always incomplete, and differ

from that of which they are the icons, but they are nonetheless intimations

of an unseen presence.

In Dora Bruder and the Invisible Man, traces are signs not just of what is

unseen, but also of what needs, in justice, to be done in relation to these

absent persons. Ellison’s narrator who sees in the world around him traces

of another, one “around the corner,” is not simply called to know what is

there, to write an accurate civic history for example, but to recognize, to

acknowledge those past and present persons as bound to him in relations of

justice. Traces, we suggested, though mute are in a sense calls for witnesses,

for those who will testify to their fates and represent them to the present,

and in so doing win for them the recognition that is their due. Dora Bruder

and the Invisible Man are acts of bearing witness, and in this way of giving

the invisible their due.

Finally, both texts turn around the mesh of relationships that bind us to the

past. That fabric is not composed only of the causal, genealogical, back-

ground to our present, nor is it primarily a storehouse of wisdom to guide

us into a better future. Rather, it is represented in these writings as endur-

ing relationships of a certain kind, belonging to a community across time,

embracing persons past, present and future, in a skein of obligations and

responsibilities that change over time but are not finally dissolved, though

they can be quitted.

The shared world of this net of standing and belonging, and of rights and

obligations stretched across generations makes of persons along its length sub-

jects of a certain kind, subjects of justice despite their temporal distance one

from the other.!3? This suggests a way to think about our archipelago-like rela-

tionship to the dead as an absent presence. Consider Dora Bruder. We, the

present time, living, occupants of that net understand those enduring moral

bonds we share with her to ground her status as a claimant on our recognition

of her and her fate. To deny her that recognition would be again to render

her radically invisible, to sever the bonds of community, and so in a manner

of speaking to inflict a “second death,” a civic one, upon her. Much of what

she was as a living person vanishes irretrievably with her death, but perhaps

not all relations between us and her are severed. We have an intuition that she

28 = Introduction

remains a certain kind of presence among us, even in the midst of the radical

absence of death. Modiano’s struggle to give her light, to restore to her a kind

of visibility, is one of the fruits of that intuition. Serge Klarsfeld, the renowned

Nazi-hunter and chronicler of the Holocaust in France, gave Modiano a pho-

tograph of Dora Bruder, writing that “From now on, Patrick Modiano knows

the face of Dora Bruder.’ In another sense, it was Modiano’s own act of

representation and recognition that made Dora Bruder visible. If that suggests

something about the presence of an absence, it also tells us that death and dis-

tance in time challenge the reality of that claim to presence. In the following

chapters, I discuss that most perplexing locale in the archipelago of absence:

our relationships with the dead, and in particular whether the bonds of justice

survive their death.

Notes

1, Aeschylus, “Agamemnon,” in Aeschylus, ed. and trans. Alan H. Sommerstein, vol. 2,

Aeschylus: Oresteia, Loeb Classical Library (Cambridge, MA: Harvard University

Press, 2008), line 466.

2. Aeschylus, “Agamemnon,” line 466; Aeschylus, “Libation-Bearers,” in Aeschylus, ed.

and trans. Alan H. Sommerstein, vol. 2, Aeschylus: Oresteia, Loeb Classical Library

(Cambridge, MA: Harvard University Press, 2008), line 317.

3. Aristotle, “On the Soul,” translated by WS. Hett, in On the Soul: Parva Naturalia: On

Breath, Loeb Classical Library (Cambridge, MA: Harvard University Press, 2000), 415b.

4. Or, on a different view, “one visits only himself, when he goes [to visit] the dead.”

Kurt Tulcholsky quoted in Barbara Bronnen, Friedhéfe (Munich: DTV, 1997), 8.

5. William Shakespeare, “Hamlet,” in The Arden Shakespeare, ed. Ann Thompson and

Neil Taylor, Third Series (London: Arden Shakespeare (Bloomsbury Publishing),

2006), 3.1.78. 6. Axel Honneth, “Entmichtigungen der Realitat,’ in Das Ich in Wir, Studien zur Anerken-

nungstheorie (Frankfurt am Main: Suhrkamp, 2010), 298-306.

7. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971),

587. 8. Plato, Plato: In Tivelve Volumes, vol. 1, Phaedo, translated by Harold North Fowler,

Loeb Classical Library (Cambridge, MA: Harvard University Press, 1977), 70a.

9. Plato, Phaedo, 64e. 10. Plato, Phaedo, 79b-c.

11. Antiphon, “Fragments,” translated by K.J. Maidment, in Minor Attic Orators, Anti-

phon. Andocides, Loeb Classical Library (Cambridge, MA: Harvard University Press,

1941), B.15. 12. Antiphon, “Fragments,” C.3.

13. Plato, Phaedo, 65e.

14. Palle Yourgrau, “The Dead,” Journal of Philosophy 84, no. 2 (February 1987): 85 note

2, 91, 95. 15. Aeschylus, “Libation-Bearers,” lines 319-20.

16. Plato, The Republic, translated by Allan Bloom (New York: Basic Books, 1968), 592b.

17. In the Phaedo, Socrates asks Simmias, “Do we think there is such a thing as justice

itself [dikaion auto] or not?” And if so, he continues, would we come to know it by

the senses? The dead, their souls, and “justice itself” differ of course in that the dead

once had presence, a being in the world (they were seen, touched, loved and so on)

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introduction 29

whereas “justice itself” never had that kind of presence. Still, they do have this in common: all are invisible, absent from the world of experience, and so their reality, and how we come to know them (assuming they have being) given that they are not

made available to us in sense experience, seem precarious and are thus fundamental

questions.

“For if the dead man is to lie there as earth [dust] and nothingness . . . and they are

not to pay the penalty, murdered in their turn, that would be the end of... the piety of all mortals.” Sophocles, Sophocles, vol. 1, Electra, translated by Hugh Lloyd-

Jones, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1997),

lines 245-50, Bernard Williams, Shame and Necessity (Berkeley: University of California Press, 1993),

18-19, 20.

Jacqueline de Romilly, Le temps dans la tragédie grecque (Paris: Vrin, 1995), 11. For a quite different reading, one that that places considerable weight on the role of the future in classical tragedy, see Elizabeth K. Markovits, Future Freedoms: Intergenera-

tional Justice, Detocratic Theory, and Ancient Greek Tragedy and Comedy (New York: Routledge, 2018).

. Clémence Ramnoux, La nuit et les enfants de la nuit dans la tradition grecque (Paris: Gal-

limard, 1959), 113-14; Paul Ricoeur, La mémoire, Vhistoire, Voubli (Paris: Seuil, 2000),

258, 437; Michéle Simondon, La mémoire et l’oubli dans la pensée grecque jusq’a la fin du

V siécle avant J.-C. (Paris: Les Belles Lettres, 1982), 203.

22. Ricoeur, La mémoire, 298.

29,

30.

. See Diego Lanza, “Le temps de l’émotion tragique. Malaise et soulagement,’ Métis. Anthropologie des mondes grecs anciens 1-2 (1988): 16, 18, 32.

4. Simondon, La mérmoire et l’oubli dans la pensée grecque, 232, 238.

. That enduringness was understood theologically. On religion, tragedy, and com-

edy in classical Athens see Robert Parker, Polytheism and Society at Athens (Oxford:

Oxford University Press, 2005), 136-52. See also Seth Benardete, Sacred Thansgres-

sions: A Reading of Sophocles’ Antigone (South Bend: St. Augustine’s Press, 1999), 11; Simondon, La mémoire et Poubli dans la pensée grecque, 223. But note Williams, Shame

and Necessity, 71.

6. Simondon, La mémoire et Poubli dans la pensée grecque, 255.

27. Luc Boltanski, La Souffrance a distance (Paris: Editions métailié, 1993), 282. Heidegger

writes of the present as being “regarded as what is,” from which vantage point the

past seems nothing more than non-presence, not-being, the “no longer now.” Martin Heidegger, What Is Called Thinking? translated by Fred D. Wieck and J. Glenn Gray

(New York: Harper and Row, 1968), 92, 101; Martin Heidegger, Was heisst denken?

(Tiibingen: Max Niemeyer Verlag, 1984), 36, 41. . Jean-Pierre Vernant, Mythe et pensée chez les Grecs (Paris: La Découverte, 1996), 116;

Romilly, Le temps dans la tragédie grecque, 28-9. George Steiner, Antigones (Oxford: Oxford University Press, 1984), 57.

Seth Benardete, Socrates’ Second Sailing: On Plato’s Republic (Chicago: University of

Chicago Press, 1989), 177; Sophocles, Sophocles, vol. 1, Oedipus Tyrannus, translated

by Hugh Lloyd-Jones, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1997), lines 1030ff.

. See Steiner, Antigones, 287—8; Benardete, Sacred Transgressions: A Reading of Sophocles’ Antigone, 1.

. Sophocles, Electra, lines 86f%; Aeschylus, “Libation-Bearers,” lines 49-50.

. Sophocles, Electra, lines 1-5; Benardete, Sacred Thansgressions: A Reading of Sophocles’ Antigone, 8; Steiner, Antigones, 62.

. Simondon, La mémoire et Poubli dans la pensée grecque, 229.

. Aeschylus, “Libation-Bearers,” lines 1051ff. For a similar use of doxai see Aeschylus, “Agamemnon,” line 421.

30

36.

37,

38,

43,

44,

45. 46.

47.

48.

49,

Introduction

Nicole Loraux, The Invention of Athens, translated by Alan Sheridan (Cambridge, MA:

Harvard University Press, 1986), 16, 74-5, 121.

Plato, Plato: In Twelve Volumes, vol. 9, Menexenus, translated by R.G. Bury, Loeb Clas-

sical Library (Cambridge, MA: Harvard University Press, 1989). For this interpreta~

tion of the Menexenus see Nicole Loraux, “Socrate contrepoison de l oraison funébre.

Enjeu et signification du Ménexéne,” L’Antiquité Classique 43 (1974): 172-211.

On pollution in the ancient Greek world see Robert Parker, Miasina: Pollution and

Purification in Early Greek Religion (Oxford: Clarendon Press, 1983). The concept

of pollution had a strong religious connotation. Yet it is found both in contexts in

which the gods are present and where they seem to be absent: Plato, The Laws of

Plato, translated by Thomas L, Pangle (Chicago: University of Chicago Press, 1988),

866b, 871b; Plato, The Republic, 470a; Plato, Plato: In Tivelve Volumes, vol. 1, Euthy-

phro, translated by Harold North Fowler, Loeb Classical Library (Cambridge, MA:

Harvard University Press, 1933), 4c; Sophocles, Sophocles: Works in Tivo Volumes, vol.

2, Antigone, translated by Hugh Lloyd-Jones, Loeb Classical Library (Cambridge,

MA: Harvard University Press, 1994), line 776, L discuss it here without its attendant

theological background.

. Parker, Miasma, 3.

. Sophocles, Electra, line 275.

. Parker, Miasma, 104. Readers of Macbeth ave left uncertain as to whether the linger-

ing stains of his crime are objective signs of guilt or the creations of his fevered mind.

. Plato, Plato: In Twelve Volumes, vol. 3, Philebus, translated by Harold North Fowler,

Loeb Classical Library (Cambridge, MA: Harvard University Press, 1925), 66a.

Simondon, La mémoire et Voubli dans la pensée grecque, 243-4, 246.

Sophocles, Oedipus Tyrannus, lines 108-9,

Williams, Shame and Necessity, 69, 71.

Jean-Pierre Vernant, Entre mythe et politique (Paris: Seuil, 1996), 452.

On pollution and the city see among other sources Antiphon, “The Third Tetral-

ogy,” translated by KJ. Maidment, in Minor Attic Orators: Antiphon: Andocides, Loeb

Classical Library (Cambridge, MA: Harvard University Press, 1941), 1.6; Sophocles,

Antigone, line 776.

See Hannah Arendt, “Personal Responsibility under Dictatorship,’ in Responsibility

and Judgment, ed. Jerome Kohn (New York: Schocken, 2003), 27-9. Something like

this has been argued about the German people in the wake of World War Two. For

an early and influential example of this line of argument see Karl Jaspers, “Die Schul-

dftage,” in Hoffnung und Sorge. Schriften zur deutschen Politik 1945-1965 (Munich:

Piper, 1965), 67-144. See Jiirgen Habermas, “L'Jber den Sffentlichen Gebrauch der Historie,” in Die post-

nationale Konstellation, ed. Jiirgen Habermas (Frankfurt am Main: Suhrkamp, 1998),

49; Jiirgen Habermas, “Warum ein ‘Demokratiepreis’ fix Daniel J. Goldhagen?

Eine Laudatio,” Die Zeit, March 14, 1997, April 18, 2019 <www.zeit.de/1997/12/

historie.txt.19970314.xml>; Jiirgen Habermas, “Historical Consciousness and Post-

Traditional Identity.” translated by Shierry Weber Nicholsen, in The New Conserva-

tism (Cambridge, MA: MIT Press, 1989), 251; Jiirgen Habermas, “On the Public

Use of History.” translated by Shierry Weber Nicholsen, in The New Conservatism

(Cambridge, MA: MIT Press, 1989), 236; Jiirgen Habermas, “Burdens of the Dou-

bie Past,” translated by Sidney Rosenfeld and Stella P. Rosenfeld, Dissent (Fall 1994):

514-15; Jean-Marc Ferry, “Interview with Jurgen Habermas,” translated by Stephen

K. White, Philosophy & Social Criticism 14, no. 3/4 (1988): 438.

50. Parker, Miasma, 106.

51. As we remarked earlier, Sophocles writes that Ocedipus’s ankles (and so his name)

“bear witness.” [marturaseien] Sophocles, Oedipus Tyrannus, line 1032.

52. Sophocles, Electra, lines 245-50.

=

| |

.

53. 54.

55.

56.

57.

58. 59.

60.

61, 62.

63.

64.

65.

66.

67.

68.

69.

70.

71,

72,

73.

Introduction 31

That is, the fate of his father, and the payment due from his killer. Line 169. Sophocles, Electra, line 341. “Forget” translates Sophocles’s lelasthai (lanthano) which

has the sense of “unnoticed” or “unseen.”

Aeschylus, “Libation-Bearers,” lines 504-5. Sophocles, Electra, line 1391. The Chorus in Aeschylus’ Libation- Bearers suggests that

the debt is owed both to the dead and the living. Aeschylus, “Libation-Bearers,” 833.

Urbain argues that writing about the dead as if they had words to hail the living is a way of denying the complete nothingness of death. Jean-Didier Urbain, L’archipel des

morts (Paris: Payot et Rivages, 1998), 39-40.

Sophocles, Antigone, line 75. Sophocles, Electra, lines 110-15; Aeschylus, “Eumenides,” in Aeschylus, ed. and trans. Alan H. Sommerstein, vol. 2, Aeschylus: Oresteia, Loeb Classical Library (Cambridge,

MA: Harvard University Press, 2008), lines 382-3. Euripides, Euripides in Four Volumes, vol. 2, Orestes, translated by Arthur S. Way, Loeb

Classical Library (London: William Heinemann, 1929), lines 320ff.

Sophocles, Antigone, lines 455 Sophocles, Electra, lines 1380f.

Aeschylus, “Eumenides,” lines 50f Aeschylus, “Libation-Bearers,” lines 1053-4.

Sophocles, Electra, lines 10f Euripides, Orestes, lines 810ff.

Sophocles, Oedipus Tyrannus, line 353; Sophocles, Sophocles, vol. 2, Oedipus at Colo- nus, translated by Hugh Lloyd-Jones, Loeb Classical Library (Cambridge, MA: Har-

vard University Press, 1998), lines 365f£ Sophocles, Antigone, lines 594ff.

Aeschylus, “Libation-Bearers,” lines 45ff Aeschylus, “Agamemnon,” line 1460; Aeschylus, “Eumenides,” line 422,

Antoine Garapon, “La justice et inversion morale du temps,” in Pourquoi se souvenir?,

ed. Francoise Barret-Ducrocq (Paris: Grasset, 1998), 116-18, 122; Antoine Garapon,

Des crimes qu’on ne peut ni punir ni pardonner. Pour une justice internationale (Paris: Odile

Jacob, 2002), 58, 199, 240, 250, 255-6. The phrase comes from the French writer, Georges Perec. “Their” refers to his

parents: his mother was murdered in Auschwitz, his father killed fighting the Nazis.

Georges Perec, W ou le souvenir d’enfance (Paris: Gallimard, 1993), 63. 1 will return to

the passage further on in this study. See Joseph Brodsky, “Profile of Clio,” in On Grief and Reason: Essays (New York: Far-

rar, Straus and Giroux, 1995), 119; Lawrence Weschler, A Miracle: A Universe: Settling

Accounts with Torturers (New York: Pantheon Books, 1990), 244; Arieh Neier, José

Zalaquett and Adam Michnik, “Why Deal with the Past?” in Dealing with the Past:

Truth and Reconciliation in South Africa, ed. Alex Boraine, Janet Levy and Ronel Schef-

ee Town: Institute for a Democratic Alternative for South Africa (IDASA),

James Baldwin, “Many Thousands Gone,” in James Baldwin: Collected Essays (New

York: The Library of America, 1998), 20; James Baldwin, “The White Man’s Guilt,”

in James Baldwin: Collected Essays (New York: The Library of America, 1998), 725. Metz discusses solidarity in terms of compassion and remembrance. Johann Bap- tist Metz, Memoria passionis, Ein provozierendes Gediichtnis in pluralistischer Gesellschaft (Freiburg: Herder, 2011), 171ff. See also Max Pensky, “Solidarity with the Past and

the Work of Translation: Reflections on Memory Politics and the Postsecular,” in

Habermas and Religion, ed. Craig Calhoun, Eduardo Mendieta and Jonathan Van

Antwerpen (Cambridge: Polity Press, 2013), 301-21; Jiirgen Habermas, “Reply to My Critics,” in Habermas and Religion, ed. Craig Calhoun, Eduardo Mendieta and

Jonathan VanAntwerpen (Cambridge: Polity Press, 2013), 388-90.

Patrick Modiano, Dora Bruder (Paris: Gallimard, 1999), 54-5, 60.

Modiano, Dora Bruder, 7.

Alan Morris, “Avec Klarsfeld, contre l’oubli’ Patrick Modiano’s Dora Bruder,’ Journal

of European Studies 36, no. 3 (2006): 269-70.

32

74, 75,

76. . Modiano, Dora Bruder, 10-11, 13.

78.

79.

80.

81.

83.

84.

85.

86.

87.

Introduction

Modiano, Dora Bruder, 10-11, 40, 84.

Modiano, Dora Bruder, 13, 29, 35, 144. Karl Schlégel argues that an encounter

with any city is an encounter with its often invisible past. Karl Schlégel, Im Raum

lesen wir die Zeit (Frankfurt am Main: Fischer Verlag, 2006), 10, 304, 313. Richard

McGuire’s beautiful graphic novel, Here, shows one small space across time together

with its past, present and future occupants. That space in which they live in the

present is one shared past and future persons. The novel’s use of drawings of native

Americans suggests that historic injustice is part of Here (and now). The first words

in Here are dated 1957, spoken by a woman standing in the house’s livingroom:

“Emm ... now why did I come in here again?” And the last spoken words in the

novel are also hers: “Now I remember.” Richard McGuire, Here (New York: Pan-

theon Books, 2014). Modiano, Dora Bruder, 84.

Modiano, Dora Bruder, 145.

Aristotle understood imagination, phantasia, as the making present of something not

present. Aristotle, “On the Soul,” 433b29; Aristotle, “De Motu Animalium,” trans-

lated by Martha C. Nussbaum, in Aristotle’s De Motu Animalium (Princeton: Prince-

ton University Press, 1985), 701a30f% Anne Carson, Eros the Bittersweet (Princeton:

Princeton University Press, 1986), 61, 63, 77. When sight is not present, Aristotle

says, phantasia enters, but phantasia is by no means always true. Aristotle, “On the

Soul,” 428a7ff, 428213, And see also Morris, “Avec Klarsfeld, contre Poubli’ Patrick

Modiano’s Dora Bruder?’ 272f€ Jennifer Howell, “In Defiance of Genre: The Lan-

guage of Patrick Modiano’s Dora Bruder Project,” Journal of European Studies 40, no.

1 (2010): 62ff. See Axel Honneth, “Unsichtbarkeit, Uber die moralische Epistemologie von ‘Anerken-

nung’,” in Unsichtbarkeit: Stationen einer Theorie der Intersubjectivitat (Frankfurt am Main:

Suhrkamp, 2003), 12-13, 15, 24. Honneth, “Unsichtbarkeit. Uber die moralische Epistemologie von ‘Anerkennung’,”

10-11. . Honneth writes that Ellison’s book offers an abundance of insights into the nature

and injustice of invisibility. Honneth, “Unsichtbarkeit. Uber die moralische Episte-

mologie von ‘Anerkennung’,” 14. I also draw on James Baldwin’s essays, studies that shed an often brilliant light on

many of these same concerns. This is not to suggest, however, that Ellison and Bald-

win saw race in America in the same way, or that they agreed on how African

American writers should respond. An important part of the early reception of the

Invisible Man was grounded in debates over the politics of race and the responsibilities

of writers. Those debates were to echo throughout Ellison’s life. “The World and the

Jug” sets out some of his differences with Baldwin and Richard Wright. See Ralph

Ellison, “The World and the Jug,” in The Collected Essays of Ralph Ellison, ed. John F

Callahan (New York: The Modern Library, 2003), 155-88.

Herman Melville, “Benito Cereno,” in Melville’s Short Novels, ed. Dan McCall (New

York: W.W. Norton, 2001), 101.

The dead on the other hand have no future. They have, in the words of the Israeli

writer David Grossman, fallen “out of time” David Grossman, Falling Out of Time,

translated by Jessica Cohen (New York: Alfred A. Knopf, 2014).

See Glenn C. Altschuler, “Whose Foot on Whose Throat? A Re-Examination of

Melville’s Benito Cereno,” in Melville’s Short Novels, ed. Dan McCall (New York: W.W.

Norton, 2001), 302-3. Altschuler observes that Delano’s offer of the healing powers

of the Trade Winds rests on forgetting that those same winds also carried slaves to

their fate in America.

Ralph Ellison, “Introduction to Shadow and Act,’ in The Collected Essays of Ralph

Ellison, ed. John FE Callahan (New York: The Modern Library, 2003), 56, 59.

4

| |

| :

88.

89.

90. 91.

92.

93.

94.

95.

96.

97,

98. . William E.B. Du Bois, Black Reconstruction (Philadelphia: Albert Saifer, 1935), 727.

100. 101.

103.

104.

105.

106. 107.

108.

109.

110.

111.

112,

Introduction 33

Ralph Ellison, “Going to the Territory,’ in The Collected Essays of Ralph Ellison, ed. John F Callahan (New York: The Modern Library, 2003), 56. Ellison, “The World and the Jug,” 171, 177; Ralph Ellison, “A Very Stern Dis-

cipline,’ in The Collected Essays of Ralph Ellison (New York: The Modern Library,

2003), 741. See relatedly Henry Louis Gates, Jr., Figures in Black: Words, Signis, and the

“Racial” Self (Oxford: Oxford University Press, 1987), 39.

Ellison, “A Very Stern Discipline,” 741. Ellison, “The World and the Jug,” 171. Ralph Ellison, “‘A Completion of Personality’: A Talk with Ralph Ellison,” in The

Collected Essays of Ralph Ellison, ed. John F Callahan (New York: The Modern

Library, 2003), 817. Thomas S. Eliot, Four Quartets (London: Faber and Faber, 1948), 40-1; Ralph Elli-

son, Juneteenth (New York: Vintage, 2000). See relatedly Robert G. O’Meally, The Craft of Ralph Ellison (Cambridge, MA: Harvard University Press, 1980), 103.

James Baldwin, “The Fire Next Time,” in James Baldwin: Collected Essays (New York:

The Library of America, 1998), 292; Lawrie Balfour, The Evidence of Things Not Said: James Baldwin and the Promise of American Democracy (Ithaca, NY: Cornell University

Press, 2001), 27.

Ralph Ellison, “Blues People,” in The Collected Essays of Ralph Ellison, ed. John F Callahan (New York: The Modern Library, 2003), 280. Ellison, “A Very Stern Discipline,’ 710; Ralph Ellison, “The Art of Fiction: An Inter-

view,’ in The Collected Essays of Ralph Ellison, ed. John F Callahan (New York: The

Modern Library, 2003), 219. See Baldwin’s remark that “[T]he loss of our own iden-

tity is the price we pay for our annulment of his [the African American’s].” Baldwin,

“Many Thousands Gone,’ 20; Baldwin, “The Fire Next Time,” 345.

Honneth, “Unsichtbarkeit. Uber die moralische Epistemologie von ‘Anerkennung’,”

24. Baldwin, “Many Thousands Gone,” 19; Ellison, “Going to the Territory,’ 600.

Ellison, “Going to the Territory,’ 598, 600.

James Baldwin writes that “the past [is] . . . thoroughly washed from the black face. . . [and thus] guilt will have ceased to be visible.” Baldwin, “Many Thousands Gone,”

20; Baldwin, “The White Man’s Guilt,” 725. . Gates remarks that one of the striking features of the Invisible Man, a novel devoted to

themes of absence and dispossession, is the strong and clear presence of the narrator’s

voice. Gates, Figures in Black: Words, Signs, and the “Racial” Self, 246. Ralph Ellison, “Hidden Name and Complex Fate: A Writer's Experience in the

United States,” in The Collected Essays of Ralph Ellison, ed. John F Callahan (New

York: The Modern Library, 2003), 192. Ellison, “Hidden Name and Complex Fate,” 193. Baldwin writes: “every American Negro bears a name that originally belonged to the white man whose chattel he

was.” Baldwin, “The Fire Next Time,” 335.

Ralph Ellison, Invisible Man (New York: Vintage, 1995), 239.

Ellison, Invisible Man, 240. Emphasis in the original.

Ellison, Invisible Man, 309. On names, loss, and identity see Francoise Zonabend, “Pourquoi nommer?” in

L’Identité, ed. Claude Lévi-Strauss (Paris: Presses Universitaires de France, 1995), 262-3;

Nicole Lapierre, Changer de nom (Paris: Stock, 1995), 134, 169; Nicole Lapierre, Le

silence de la mémoire. A la recherche des Juifs de Plock (Paris: Plon, 1989), 26-7, 259.

Ellison, Invisible Man, 273. On the injury done by the destruction of family photos and other material traces of

a life in common, see Anne-Marie Garat, Photos de familles (Paris: Seuil, 1994), 40.

Ellison, Invisible Man, 259.

Ellison, Invisible Man, 439.

34

113. 114.

115.

116.

117.

118.

119.

120.

121.

122. 123.

124.

125.

126. 127.

128.

129.

130.

131.

132. 133.

134.

135.

136.

137.

138.

Introduction

Ellison, ‘““A Completion of Personality’: A Talk with Ralph Ellison,” 818.

Ellison, “Going to the Territory,” 598. Ralph Ellison, “Commencement Address,” in The Collected Essays of Ralph Ellison,

ed. John FE Callahan (New York: The Modern Library, 2003), 417.

See James Deetz’s study of the archaeology of early American material culture. James

Deetz, In Small Things Forgotten: An Archaeology of Early American Life, Second Edi-

tion (New York: Anchor Books, 1996). For a related reading of the importance of

objects as mnemonic devices in the Invisible Man see Marc C. Connor, “The Litany

of Things: Sacrament and History in Invisible Man,” in Ralph Ellison and the Raft of

Hope: A Political Companion to Invisible Man, ed. Lucas E. Morel (Lexington, KY: University of Kentucky Press, 2004), 171-92.

Ellison, Invisible Man, 273.

Ellison, Invisible Man, 273. Connor argues that Ellison’s invisible man must find his identity in that of the larger

African American community. Connor, “The Litany of Things: Sacrament and His-

tory in Invisible Man,’ 180. Ellison, Invisible Man, 273. William Faulkner, “The Bear,’ in Go Down, Moses (New York: Vintage, 1990), 198.

Baldwin, “Many Thousands Gone,’ 22-3. Deetz, In Small Things Forgotten: An Archaeology of Early American Life, 188, 211-13.

Ellison, “Going to the Territory,” 598. Ellison, “Going to the Territory,’ 600. Ellison, “Introduction to Shadow and Act;’ 59.

Ellison, Invisible Man, 15, 508. Ralph Ellison, “Working Notes for Invisible Man,’ in The Collected Essays of Ralph

Ellison, ed. John F Callahan (New York: The Modern Library, 2003), 343.

Ellison, Invisible Man, 507-8.

O’Meally reads the “around the corners” phrase as gesturing towards the future. However, bracketed as it is in that passage by references to memory and to “images

of past humiliations,” the retrospective orientation seems a natural understanding of

Ellison’s meaning. O’Meally, The Craft of Ralph Ellison, 103. Nevertheless, past and future share a quality of being absent, and both cast shadows on the present of the

Invisible Man. See Ellison’s statement that in “all my work there is an undergrounding of American

history as it comes to focus in the racial situation.” Ellison, “‘A Completion of Per- sonality’: A Talk with Ralph Ellison,” 818. Ellison, Invisible Man, xv.

Baldwin, “Many Thousands Gone,” 20; Baldwin, “The White Man’s Guilt,’ 725

Emphasis added. Ralph Ellison, “Alain Locke,’ in The Collected Essays of Ralph Ellison, ed. John F. Cal-

lahan (New York: The Modern Library, 2003), 450.

Baldwin, “Many Thousands Gone,” 22.

Honneth, “Unsichtbarkeit. Uber die moralische Epistemologie von ‘Anerkennung’,” 24, See Honneth’s discussion of erkennen and anerkennen. Honneth, “Unsichtbarkeit.

Uber die moralische Epistemologie von ‘Anerkennung’,” 14—15. Immanuel Kant, Groundwork of the Metaphysic of Morals, translated by H.J. Paton (New

York: Harper Torchbooks, 1964), 94-9; Immanuel Kant, Kants Werke, Akademie-

Textausgabe, vol. 4, Grundlegung zur Metaphysic der Sitten (Berlin: Walter de Gruyter,

1968), 427-31. For an extended discussion of dignity, including the dignity of the dead, see Michael Rosen, Dignity: Its History and Meaning (Cambridge, MA: Har- vard University Press, 2012), 127-42. And relatediy Don Herzog, Defaming the Dead

(New Haven: Yale University Press, 2017).

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Introduction 35

139. Margaret Walker writes “The terminology of “restoration” is sometimes criticized because it implies return to a condition of relationship that either did not exist or was unacceptable. I propose that we understand “restoration” in all contexts as normative:

“restoration” refers to repairs that move relationships in the direction of becoming

morally adequate, without assuming a morally adequate status quo ante.” Margaret Urban Walker, “Restorative Justice and Reparations,” Journal of Social Philosophy 37,

no, 3 (Fall 2006): 384, Here and throughout this study, I adopt her proposal as to how we should understand the language of restoring. and apply it as well to phrases such

as “community of justice,’ “belonging,” “embedded in” and so forth.

140. Serge Klarsfeld, Le mémorial des enfants juifs déportés de France (Paris: Les fils et filles des déportés juifs de France. Beate Klarsfeld Foundation, 1995), 1535.

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Presses Universitaires de France, 1995. 257~79.

] JUSTICE BETWEEN PAST

AND PRESENT

To frame the following discussion of the bonds of justice between dead and liv-

ing persons, between the past and the present, let us begin with an illustration:

examining responses to the events of Bloody Sunday, January 30, 1972. On that

day, British soldiers in Derry, Northern Ireland, opened fire on a civil rights

march, shooting to death thirteen civilians.! One of those victims was Kevin

McElhinney, a shop clerk, age 17, killed shortly after 4:00 pm. In the moment

of his death, McElhinney became someone with only a past, or more radically

he became in Electra’s words “dust and nothing.” Over the years, his death-

caused absence was joined by a related kind of distance, that of being historical,

of belonging to a time very different from the present. Nearly four decades

later, on June 15, 2010, the Saville Bloody Sunday Inquiry, established by then

Prime Minister Tony Blair and led by Lord Saville, published its findings. The

wounded and dead, it concluded, were shot without cause; their names were

cleared of wrongdoing. Prime Minister David Cameron spoke before Parlia-

ment, accepting the Report and apologizing on behalf of the British Govern-

ment. Family and community members, some carrying photographs of the

dead, gathered at the Derry Guildhall to learn of the Report’s findings and to

hear the Prime Minister’s response to them. Upon being informed of the com-

plete exoneration of the deceased, family members addressed the crowd, end-

ing their statements with “Innocent!” There they witnessed Kevin McElhinney

receiving his measure of justice: a conclusion of some twenty-one words in the

Report, not to attempt to mend the irreparable but to acknowledge him, to

restore his good name, and to say that he was innocent and wronged. “We are

sure,” the Saville Inquiry stated, that he “was posing no threat to soldiers when

he was shot. He was simply trying to crawl to safety.”? Above the crowd was

a large image of McElhinney, his eyes looking out over the throng of people

gathered in central Derry (Figure 1.1).

Sr

SERS

ODE

FIGURE 1.1 Derry rally. June 15, 2010

Source: By permission of the Irish Times, Dublin, Ireland.

42 justice between past and present

This banner suggested a kind of presence, as though the victim was there: a

persisting member of a community of justice, demanding truth about his fate

and recognition of his innocence, and receiving it at last, now the only repair

possible for him. His image and those of the other Bloody Sunday dead also

pointed to the central place of the absent victims, as if to say that doing justice

was principally about them and the wrongs they suffered, that the dead were

absent but not therefore nullities.°

Death and the transformations wrought by the passing of time (and by as we

shall see a judicial displacement of the victim) combine to challenge the idea

that we can address the absent dead of historical injustices. So, for example,

the changes since Bloody Sunday: the war in Northern Ireland, then in full

flower, now ended; the Unionist political dominance that was a principal target

of the civil rights march that day in 1972, largely a thing of the past; many of

those immediately concerned, family members and so on, dead; evidence lost

and eye-witness memories faded; the concerns of the past now less weighty. In

those and other ways, the shooting of Kevin McElhinney is a historical injus-

tice, and dealing with it involves difficulties common to doing justice in rela-

tion to events which occurred at another time and under circumstances sharply

different from the present. At the same time, and relatedly, there is (as we have

suggested) another distance, more radical still, a pastness not of calendar time

but one introduced by death, which seems to make it impossible to reach those

victims. For the Catholic faithful at the funeral Mass for the Bloody Sunday

victims, there was the certainty that McElhinney and the others killed that day

would in fact confront their killers in the next life. In the words of Hebrew

Scripture (Book of Wisdom, ch. 5, lines 1ff), read at that Mass, “The upright

will stand up boldly to face those who had oppressed him.” But how are we to

translate such a faith-grounded calling-to-account into a this-worldly idiom?

And what would it mean to say that the Saville Inquiry gave a measure of jus-

tice to the dead of January 30, 1972? What is it to do justice to the dead who,

though once persons and thus capable of demanding and receiving justice, are

now (it appears) nothing more than a handful of dust? Perhaps, like other rites

associated with caring for the dead,* addressing historical injustice is simply a

gesture on the part of the present and living, who (it might be urged) consti-

tute the only real subjects in this drama, and whose interests and perspectives

alone steer these dealings with the past. And with that, we might conclude that

“doing justice to the past” is in the end simply a manner of speaking, the real

meaning of which lies elsewhere, in the present or future, with the living and

perhaps those who one day will have life. Like other efforts to address historical injustice, the work of the Saville

Inquiry was guided (and challenged) by multiple interests and their claim-

ants. In the present tense, the politics of a now largely peaceful Northern Ire-

land were at play, as unionist and nationalist parties adopted their positions on

its mandate and findings. So likewise, the British government and its stake

Justice between past and present 43

in stabilizing peace in Northern Ireland were central to the creation of this

Inquiry. Again, and characteristic of an array of devices to deal with past injus-

tices, the future too had its claims represented to the present. Indeed, Prime Minister Tony Blair, in establishing the Inquiry, said of it: “I believe that it is in everyone’s interests that the truth [about Bloody Sunday] be established and

told. That is also the way forward to the necessary reconciliation that will be

such an important part of building a secure future for the people of Northern

Ireland.” The Northern Irish situation, and the role of the Saville Inquiry

and other processes searching into the past surely are not unique. Similar pres-

ent and future-driven orientations towards historical injustice can be found in responses to Argentina’s 1976-1983 “dirty war,” in South Africa’s Truth and

Reconciliation process, Nunca Mads inquiries in Central and Latin America, and

their counterparts in de-communizing Central and Eastern Europe. For the

moment, I want only to observe that the injustices of the past, their victims and

perpetrators, are not themselves typically the central guiding threads in reflec-

tions on these processes but rather are brought within the horizon of present

and future motivations and interests.

What is often missing in our treatment of the absent victims then is a con-

sideration of the status of past persons as possible claimants on justice, and of the orientation our action ought to have in relation to those events and persons.

At first glance, this might seem perplexing.’ For how can understanding, and

acting on, historical injustices not be (at least in central part) past-oriented, in

the sense of motivated by the imperative to recognize the absent victim, the

injustice done her, and to give her whatever repair is now possible? Of course,

the very presence of the qualifier “historical” signals that this class of phe-

nomena is characterized by its pastness and radical separateness, but whether

pastness and death are sealed wells or sites of ongoing (if limited) interchange

with the present is a crucial question. One might have expected that at the core of our understanding of how to address historical injustice in its pastness stand

just those crimes, their victims and perpetrators. It is striking that by and large

this is not the case, and perhaps more striking still is that the question itself of justice to the absent dead seems to have been largely forgotten in the literature

or, when it is raised, recast as an issue of how to address in a liberal society the

presence of religious belief about death.® Although there is an extensive work

done on our responsibility to future generations, the question of whether we

have obligations to earlier generations (or persons) receives relatively little atten-

tion.” This tells us, I think, something important about the undezlying and

profound difficulties involved in answering historical injustice, and about the

need at least to raise the question of the status of the dead as possible enduring

subjects of and claimants on justice.

Allow me to begin here by mapping out a few characteristic present and

future-oriented approaches to dealing with the past. For some, addressing his- torical injustices is politically and socially therapeutic and as well personally

44 Justice between past and present

healing for survivors and loved ones. As such, it can be an important device for

breaking with a violent and oppressive past.'? Unacknowledged past injustices,

on this view, are open wounds for the living, injuries unanswered, and what

is perhaps more damaging still, unrecognized. As we saw in Ellison’s Invisible

Man, an unacknowledged history of injustice amounts to a denial of the equal

worth of the victim, and of the equal status of her surviving community in the

present. A public rendering of accounts about that past is a path to justice and

reconciliation for present persons, and thereby to the building of a stable and

just future grounded in recognition and acknowledgment of the past.'! Deal-

ing with the past dispels the shadow cast by having a group’s history of unjust

treatment left invisible!? Note that the purpose and direction of the varied

efforts to address the past are set by the needs of the present and the future, e.g.,

reconciliation for the sake of constructing a stable and just democratic society.

It is less the historical injustice itself, or its original victims, that are the compass

here than the manifold needs of the present and future.

Another approach sees the principal purpose of acknowledging past wrongs

to be a type of education towards a more just civic culture.'? The governing

concern here is shaping civic identity, understood to include accepting respon-

sibility for historical wrongs.'4 A third way of understanding why we address

past injustice focuses on both the pedagogical and deterrent functions of trials

and other comparable instruments.!* In practice, of course, and in much of the

relevant theoretical literature (including those studies cited here), these strands

(truth and reconciliation, civic identity-formation, historical education and

deterrence) are intertwined. And in all of them, the past of historical injustice,

its victims and perpetrators, have an important place. What is central to them,

however, is that this past is embedded in an orientation to the present and

future, the interests and needs of which provide the main steering mechanism.

This primacy of the present and future is sometimes made explicit as the

foundation for the argument as to why (and how to) deal with past injustices.

Spinner-Halev, for example, urges that we give priority to “enduring” injus-

tices, to wrongs which, though originating in the past, persist as injustices

among those in the present and, if left uncorrected, into the future as well.

Past injustices matter, he argues, insofar as they are related to our present cir-

cumstances. And remedies are required for enduring injustices precisely because

they are current." As Lucas Meyer writes, the duty to remove the enduring

effects of past crimes is not past-oriented, though it does imply an identity

across time in the form of a community’s intergenerational responsibility.

Even approaches which are more inclined to acknowledge the weight of

the past tend to make it subordinate, to justify their turn to the past employ-

ing what Axel Gosseries terms a “lateral” mode of argument, meaning it goes

through the past, so to speak, but on the path to a present or future terminus.

Bernard Boxill’s Lockean argument for reparations for African Americans is

an illustration of this. Though the injustice was inflicted on past persons, the

SO

SS

a rece

a eR

SI

ROH

EG

URS

UNS

Justice between past and present 45

response to it is directed not to them but to the living.!? Consider also in this

regard Robert Nozick’s theory of justice in holdings. Nozick holds that the

various acts of transmission of property can be justice (or injustice) preserv-

ing. That means that the justice of any current property ownership is to be

determined retrospectively by an evaluative cataloguing of the series of acts

of acquisition and transfer that yielded it.2° Where past acts of acquisition and

transfer have been unjust (for example, via slavery, conquest, or theft) the pres-

ent holdings derivative of these actions are themselves polluted by their history and so rectification is required.?! Here then is a theory that not only offers the past as a backstory to present tense questions of justice but as a history that

shapes our evaluation of any given current pattern of holdings. Present tense

justice in holdings, according to Nozick, depends upon a past of a certain kind,

an account that he contrasts to current time-slice/end-pattern approaches, nei-

ther of which are past path-dependent. This suggests the depth of the relation-

ship between past and present, and makes the justice of our current practices

dependent on past actions and their justice.

At the same time, however, the core here remains justice in the present.

Such an approach understates the significance and full weight of the claim that

to do justice to the past is centrally to address the victims and the wrongs done

them.”* Lukas Meyer argues that it in thinking about historical injustice it is insufficient to say that the past matters only or primarily because of its present

effects.2° The significance of historical wrongs, he writes, is that past people were victims of these injustices.** The implications of this are complex but for the moment we should note the following: for Meyer there are historical duties,

that is duties of living persons to past individuals.?> These surviving duties

matter not, or not only, because of the enduring effects of injustice on persons

or their communities as they are now. Rather they are duties that are past-

regarding, related to the (future-oriented) rights of past persons, and important because of those rights and the duties that we inherit through them.*°

Particularly noteworthy is his argument that these duties do not depend on

seeing past persons as in any sense enduring subjects of justice.2” What I want

to underline is that even in this past-looking view of historical justice, one which rejects the notion that the past is at most a part of the causal background

of present and future ills and their remedies, the latter two temporal registers

and their denizens retain a certain primacy: past persons cannot be bearers of

rights, or harmed or benefitted by our actions in the here and now. In that

sense, there is from the standpoint of justice a deep asymmetry between present

and past persons. Theories of justice define the set of subjects of justice falling under their

principles.?’ In reflecting on historical injustice, the question of the signifi- cance of past persons would seem to be of considerable importance: are they

subjects of justice, simply parts of the genealogy of the present, or source mate-

rial for warnings regarding the future? Yet, as I remarked earlier, in much

46 justice between past and present

contemporary theory these are scarcely questions at all, and that silence itself

deserves reflection. History, Spinner-Halev writes, “rarely haunts liberals as

much as it should.’”°° But why? There are many reasons, | imagine, but if cen-

tral among them is a present time preference, then one might hope to find in

Rawls’s work a promising alternative approach. For Rawls states that as diffi-

cult as the concept is, the question of justice between generations is essential to

a complete account of justice.! And the Rawlsian theory of justice, looking to

these questions and employing the familiar devices of the original position and

veil of ignorance, would appear ideally suited to exploring the range of subjects

of justice beyond those present in the temporally bounded community of the

here and now.** The parties in the original position know themselves to be contemporaries but do not know to which generation they belong. The result

is that although the original position is not an assembly of all generations, the

constraints which govern it make the principles it adopts the virtual equivalent

of such a gathering. Among other things, this approach involves the rejection of a time preference, of attaching greater importance to the claims of one gen-

eration over another on the basis of their location in time.**

In principle, then, the claims of all generations should be modeled in the

original position, even though it is composed of contemporaries and set in the “present time of entry.” Yet Rawlsian contract theory encounters problems,

and deep ones, as it seeks to extend its reach across time and space, to other generations and to other societies.*> Important here are the circumstances of justice, the objective and subjective circumstances that make “cooperation both

possible and necessary.”°° They hold in the first instance among those sharing a closed society, in a single generation and a bounded territory. Relations with

what Rawls terms “third parties,” for example one’s descendants, are problem- atic.2? We might sum up much of this in Onora O’Neill’s observation that a shared world is a circumstance of justice.°8 Do the occupants of the archipelago of presence and absence share a moral world, a community of justice? If they

do not share a community with past or future persons, if they are “another

country,” why, given mutual disinterest and the absence of reciprocity”? in relations between them, would the present time of entry contemporaries in

the original position choose a principle binding them to save for future gen-

erations or to carry out obligations to the past? To make this intergenerational extension. work (in its future-oriented register), Rawls initially worked up a

motivational assumption to replace the original position condition of mutual disinterest, the latter not offering any incentive to save for future generations.*°

That motivational assumption models the original position participants as heads

of multi-generational households, having a natural concern for the welfare of

future family members, at least out to their children and grandchildren. Given that sentiment, so Rawls argues in Theory of Justice, the original position delib- erators would in fact save for future generations. Justice to the future, in other

words, is conditional on a sentiment substituted for the original premise of

Justice between past and present 47

mutual disinterest.*! Rawls later withdrew this motivational assumption and offered in its place an argument that deliberators in the original position must

select a just savings principle that they would want all earlier generations to

have followed.”

I am not concerned here to evaluate whether the later Rawls successfully

salvages the just savings principle from the issues that burdened his initial for-

mulation. Rather, my interest is what we learn about intergenerational justice,

and in particular justice to the past, from Rawlsian liberalism. At the most

general level, it is clear that the problem of the extension of justice beyond the

temporally (and spatially) bounded community is burdened (in its Rawlsian

version) by severe, arguably insurmountable, difficulties. These arise from the

fact that all effects flow in one direction, with the result that there is no pos-

sible reciprocity of influence between generations. So, if we again employ the language of absence to capture part of our relationship to the past (and future)

we can translate this into Rawlsian terms by saying that the relevant mutual-

ity of society, understood as the reciprocity of influence, is missing from those

relationships. On an account that grounds justice in those basic circumstances,

obligations across generations are difficult to establish and so seem to require a

further motivational assumption. If that is true for future generations, it applies just as powerfully (if not more so) to the past, where there is also no reciprocal

power.** If for example we squander the inheritance left us by earlier genera- tions, those past persons have no way to impose a penalty on us. Moreover it

is by no means clear that they are (or could be) in any way harmed by such an

act of wastage.

The early Rawlsian remedy for this, as we just remarked, is a motivational

assumption, modeled on father-son relations. It depicts a sentiment in fam- ily relations looking towards the future but strikingly with no retrospective

moment, no sentiment for example of indebtedness to one’s predecessors. The

absence of the past is also apparent in the represented voices, the virtual voices

of other generations, which are to be found in the original position. As we

said earlier, given the information constraints that the veil of ignorance sets,

together with the rejection of pure time preference, no generation’s voice is in principle excluded here. Although the veil of ignorance should thus mean that

all positions are represented, in fact it is only the “claims of its successors” that

call out to be addressed. Why? Perhaps because the fact that we can act on, shape, the future but not the past must mean that relations of justice, and dis-

tributive justice in particular, are not possible between past and present genera-

tions but are possible in relation to future persons.** The conversation between present and future has no retrospective counterpart. In discerning the relevant

sphere of subjects of justice, then, the dead are not (in the Rawlsian view) par-

ties in an intergenerational relationship.

If the dead are, for the reasons just advanced, not to be counted among the

subjects of justice then at least they and their actions while living can leave

48 Justice between past and present

traces that endure into, shape, and perhaps create future-oriented obligations

in the present. In some cases, these traces are relevant to doing justice if only

to our contemporaries or the following generations. Of course, for Rawls the

past does leave us a testament, as in (for example) his assertion of the indebted-

ness of political liberalism to the Protestant Reformation.*” More importantly,

the aspiration to pass on basic institutions of justice has an important place in

Rawls’s account of intergenerational justice and in that we can see the outlines

of a debt of gratitude to the past (missing as we said from his discussion of

the family) for its gift to us of those institutions as well as a related obligation

to the future to hand them on intact or improved. Even though, as Rawls

argues,*® generations have their own aims and are no more subordinate to one

another than individuals are, the inheritance and transmission of basic insti-

tutions of justice seems essential to the notion of a community of justice, of

fair cooperation, across time.” The other side of that coin, however, is largely

absent from Rawls’s theory of justice: the way in which (for example) morally

tainted property and institutions spill over generational boundaries and stain

both the things distributed and the institutions doing the distributing. With

that absence, another facet of addressing historical injustice is left unexamined,

one that bears four-square on the American experience of slavery and segrega~

tion, and on the expropriation of native American peoples. Rawls rejects the

Nozickian historical approach to entitlement because it allows too great a role

for the “contingencies of history.”®° Yet, the obverse of that justification of

inequality in the present is Nozick’s argument that property (and by extension,

institutions) can also be tainted by their origins in conquest or slavery (or insti-

tutions and decision-making procedures settled on in an age when for example

women, the poor, and others had no political voice): injustice-preserving, and

demanding repair for that wrong.*! The thought that ancient wrongs survive,

as if preserved in the amber of enduring property and institutions, also inti-

mates that the victims of these distant injustices are not (in Rawls’s phrase)

“third parties” to our community of justice, but rather are part of it if only in

a radically diminished capacity. Their wrongs and injuries continue to have a

presence among us, and thus we can be said to share a common moral world

with them.

As I remarked earlier, there are intimations in Rawls of a more complex

understanding of relationships across time. Here I will note one of the more

suggestive of these exceptions. Each generation, Rawls writes, “passes on to the

next a fair equivalent . . . in return for what is received from previous genera-

tions.”*2 The “in return for” relationship, directed to the past, clearly suggests

a moral reciprocity between generations, including past ones. Those previous

generations plainly have no means to sanction us if we waste their gift. For

the same reason, future generations are not able to reward or punish us in the

present for handing on to, or denying, them their inheritance. “In return for”

expresses an “understanding between generations to carry their fair share of the

Justice between past and present 49

burden of realizing and preserving a just society.”°? No motivational assump- tion, no natural sentiment of attachment on the model of familial relations, is

invoked here but only a norm of reciprocity, gratitude, and transmission to the

future.*4

Rawls’s Theory of Justice and its original position have been criticized on many

grounds including gender and its heads of households argument, the absence of

foreigners in the original position, difficulties in addressing justice beyond bor-

ders, and the equation of justice with its distributive dimensions alone.® In the

context of a past-oriented historical injustice argument, it might be suggested

that the distributive paradigm, in addition to (as Iris Young observed) glossing

over other forms of injustice, is directed to the present and future as the only

possible theaters of action for its principles.*° Earlier, I wrote that this is an odd

result given that the thought experiment which yields the just saving principle

seems virtually to require breaking out of the temporally bounded and closed

community, and in so doing to make available the voices of all generations,

both the absent and the present.

We have noted that for much contemporary work in political philosophy,

the status of past persons as subjects of justice is hardly a question at all, and

where it is raised, it is typically in relation to justice in the present and future.

I have just discussed the Rawlsian variant of this, but here I want to remark

briefly on the ways in which the absence of the past in these theories of justice

seems broadly typical of a modern and democratic displacement of the past in

favor of the present and future.*’ Earlier we quoted Eamon Duffy, writing that

The Reformation . .. [sought to] redefine the boundaries of human com-

munity, and . . . to limit the claims of the past, and the people of the past,

on the people of the present.>®

In a second and related form, the cult of the past, the attribution to it of norma-

tive and justificatory weight, and the notion of remembrance as an act of piety

are swept away, to be replaced by the needs, rights and interests of the present,

and (more ambiguously) their projection into the future.°? Emblematic of this

transformation is the debate between Edmund Burke and Thomas Paine over

democratic modernity and the place of the past in it. Burke, it will be recalled,

saw the French Revolution and its associated social contract doctrines as deeply

destructive of intergenerational ties, their moral character, and the political-

social ballast they provided. Paine countered that the dead and the past have no role to play in a democratic polity: “It is the living, and not the dead, that are

to be accommodated.”*! Paine’s argument was in part directed at the Burkean notion of the past as a source of obligation, on the model of entail, an inheri-

tance to be guarded and preserved and not experimented upon. Such a view seemed to shackle the actual will of the people to a past beyond their reach,

and in that sense to limit the autonomy of the present, to make of the past a

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50 Justice between past and present

force “binding and controuling posterity to the ‘end of time.””** Rather, Paine

continues, it is the “consent of the living,” not the moral weight of the past via

inheritance, that gives force to laws and institutions.® Past and present genera-

tions are, in Thomas Jefferson’s words (in his September 6, 1789 letter to James

Madison), like ‘one independent nation to another.”** They are separate and

distant, insular and not locales in an archipelago, and with no obligations to one

another, much less any rightful sovereignty of past over present.

Part of that distance is expressed in Paine’s argument that since only the

present has reality, we are not bound in relations of obligation and indebtedness

to (no longer existing) past persons. When a person ceases to exist “his power

and his wants cease with him; and having no longer any participation in the

concerns of this world he has no longer any authority.”© So likewise, for both

Jefferson and Paine: with the passing of a generation, its will ceases to exercise

authority over its successors. The past and its denizens do not have any present

reality, at least none that might rightfully bind the living. “The present only has

a being in nature; things past have a being in memory only, but things to come

have no being at all, the future being but a fiction of the mind.”*

Though these observations are centered around the role of constitutions in

democratic societies, and as well around an opposition to the Burkean notion of

the past as “ballast,” we can nevertheless discern in them a number of key objec-

tions to an effort to recognize and address historical injustice in its pastness, and to

seeing past persons as enduring subjects of justice. Running through them is

the thought that we do not share a community of justice with the past and the

dead. While the following recasting of these objections is by no means exhaus-

tive, it does offer the materials of a basic framework by which to understand

central dilemmas in the idea of duties to the dead and more generally in relation

to the past. In summary form, these objections are: (1) the idea of a responsibil-

ity for and to the past, and relatedly of wrongs that persist beyond the time of

their direct victims and perpetrators, raise a number of issues, encapsulated in

the challenge to explain “how wrongs can go forward . . . and how responsi-

bility can go backward?”®’ The notion of inherited responsibility escapes the

ethical individualism and the agency-centered accounts that underpin much

liberal political philosophy. Inheritance of responsibility implies that the sins of

the parents are indeed visited on their children, though the latter are separated

from the deeds of the former by a yawning temporal distance and the separate

moral/forensic identities of the parties. Applied to political communities, this

riposte might argue that different epochs are thus as separate from one another

as ate individuals or (in Jefferson’s words quoted earlier) they are like “one

independent nation to another.” And lastly, as we have just seen, the notion

that we are bound by earlier (or future) generations seems to move against will

and consent-based democratic understandings of politics, for it says that we, the

present generation, can be subject to obligations which we have not authorized

or consented to. Rejecting the possibility of a community’s responsibility over

justice between past and present 51

the long duration severs connections of accountability between the islands that

compose that archipelago of presence and absence, and detaches the now dead members of past generations from any moral connectedness to the denizens of

the island of the living. On this account, the past and its dead are indeed in all

these ways another country, and not therefore a part of a shared community of

justice.

(2) Jefferson’s September 6, 1789, letter to Madison poses a closely related

challenge. There the argument is that a political community arrayed across

time does not have the moral or (in Locke’s term) forensic identity or unity

of a person over the course of her life, but is rather like several different com- munities. In other words, an intergenerational political community is not a

single, identical subject of attribution across that duration. Indeed it is not a

single community at all but many communities though perhaps sharing much in common. Madison, in his response to Jefferson’s letter, counters that

The improvements made by the dead form a charge against the living who

take the benefit of them. This charge can no otherwise be satisfyed than

by executing the will of the dead accompanying the improvements .. .

There seems then to be a foundation in the nature of things, in the rela-

tion which one generation bears to another, for the descent of obligations

from one to another.

Although Jefferson (like Aristotle before him) is primarily interested in this

question in its fiscal form, namely, the notion of debts transmitted by one gen-

eration to the next, it plainly has broad implications, some of which Jefferson

himself draws out, for instance, in his opposition to a “perpetual constitution,

or even a perpetual law.””° And it plainly has implications for how we think about enduring political communities and historical injustice. For to ascribe

intergenerational responsibility, to assume that we in the present are called on

to act towards a past that we acknowledge in a normative sense as ours, would require a concept of identity sufficient to overcome the multiple insular politi-

cal selves analogy advanced in Jefferson’s letter. It would require that despite

the absence of the past and the changes that occur with the passage of time, we

are nevertheless generations of a community, enmeshed archipelago-like in its

shared and enduring moral fabric and in that way co-responsible for the past

and the future, and their denizens.

(3) Lastly, there is this particularly forceful challenge to the idea of address-

ing historical injustice. In brief, the (past-related) claim here is that death cre-

ates an unbridgeable distance between those in the present, endowed with

existence, will, interests and the capacity for action and past persons who do

not possess those (or any) faculties, persisting only in the memory of the liv-

ing. As such, and considered apart from a religious view of an enduring post-

mortem soul, they simply have no existence. They cannot demand justice, nor

52 justice between past and present

can they be benefitted or harmed by our present tense action or inaction in

relation to them. In brief, they once were but are no longer subjects of justice.

Thus their fate, these victims of historical injustice, is of a piece with all the

dead: that of being reduced to “dust and nothing,” not just the annihilation of their bodies but the dissolution of their status as subjects of justice, and so of

their relational ties within a persisting community. On this account, addressing

historical injustice can in no way mean doing something for the dead. They do

not exist and are beyond harm or repair. In the words (quoted earlier) of the title of Israeli writer David Grossman’s elegy to his dead son, they have “fallen

out of time”” and so out of any possible shared community with us, we who still do live in time.

On this view, attending to historical injustice must always in fact mean

addressing whatever marks those events have left on the present, or using any lessons it may offer to shape civic identity in order to help avoid future injus-

tice.’”? I should add here, though it is not among the guiding concerns of this study, that the call to do justice to the future poses similar, though not identi-

cal, challenges. Past persons, even allowing the claim that they now have no

sort of existence whatsoever, nevertheless once were persons: with preferences

and interests, and bound to others in relations of citizenship, family member- ship, and faith. Future persons, on the other hand, also do not now exist but

unlike past persons they will (with our cooperation) exist one day and, as Parfit

observes, we can affect their identity.” Yet, as we saw in Rawls’s discussion

of a just savings principle, doing justice to the future seems plausible, if also

burdened with complexities of its own, ones that partially overlap with those

attendant on a backward-looking perspective. In general, one might say that past and future, seen from the standpoint of the present, are locales of absence,

of types of distance that challenge the idea of'a shared world with them, thereby

making the idea of an intergenerational community of justice difficult if not

impossible to conceptualize. In the pages that follow, I briefly expand upon these clusters of issues so as to map out the difficulties that await any defense

of the possibility of answering the victims of historical injustice, in all their

profound and manifold absence.

(1) Historical injustice is (within the community in which it occurs) inter-

generational in character’ and as such raises questions particular to that kind of normative-temporal relationship, including the viability of the notion of

inherited wrongs and of duties to past persons. In a fairly obvious sense, pres-

ently living persons cannot be guilty of injustices that predate their existence

in the same way and degree that they are accountable for their own actions.” Of course they are responsible for their action (or inaction) in relation to cur-

rent wrongs that have their origins in those historical events, and they can

also become complicit in them if they enjoy the fruit of past injustices.”° In

that latter instance, it is the present tense injustice that is addressed. However,

for these remote wrongs and their original victims to be the object of our

justice between past and present 53

care (to remember, repair, acknowledge and apologize), there must be a sense in which the present subject belongs to an enduring and accountable “we.” There needs to be an injured party to be addressed, and that in turn means that

the absent victims, who are part of that enduring “we,” must be able to have

a standing in the present, living, iteration of their community. This absorp-

tion into a transgenerational community of responsibility rests uneasily both

with a temporally bounded and insular understanding of the relevant political

community (of the sort we saw in Rawls, and in Jefferson and Paine) and in

its attribution of guilt or responsibility to a collective agent it also clashes with

ethical individualism.’® Nothing obvious about the present person binds her to that past in a relationship of indebtedness and accountability; equally, noth- ing obvious about the past victim (and past actions) makes her (and them) a

continuing presence in the community. Rather, it is only by seeing her as part

of an enduring group, and that group (including its past people) as a subject of

attribution, that we can conceive of her and her present generation inheriting

duties and debts to the dead. Understood in this, way, the friction occurs not

only at the familiar intersection of group and individual responsibility, but also and relatedly over the notion of a responsibility incurred across generations and

thus outside the bounds of agency (individual or group).

(2) In addition to the question of the forensic identity of a political com-

munity across time, the idea of a historical community of inherited debt and

responsibility also challenges the voluntarist understandings of community so

central to the social contract and other modern democratic idioms.”? Claimed

duties (of'a civic kind) to the dead, including the imperative to answer injustices

done them, can but do not typically rest on contracts or promises. Although

a faithful execution of the deceased’s will often figures as an illustration of a

responsibility to the dead person’s antemortem wishes, the customary language

of inherited responsibility frequently invokes no such contract, except perhaps

metaphorically (as in Burke’s Reflections on the Revolution in France). Some char-

acteristic examples would include statements of the following kinds: “we have

all assumed a debt . . . to immortalize their memory”;®° “Those who are alive receive a mandate from those who are silent forever.’’*! If addressing histori- cal injustice involves, as we said, a (non-contractual, inherited) debt to the

dead and as such confers on those dead a power over the living that would also appear to run counter to the familiar future-oriented, self-image of Western

modernity.®?

The power of the past and its dead seem to conflict with these other impor-

tant values: [A] as Jefferson’s September 6, 1789 letter to Madison suggests, the

presence of the past, whether in the form of obligations, duties, fiscal debts

or constitutional stipulations, means that the present and living do not gov- ern themselves fully but rather are, in varying degrees, governed by others, in

this case by the dead of another generation, which in his account amounts to

being ruled by entities with whom we do not share a community of any type.

54 Justice between past and present

And so if one adopts Jefferson’s image of the past and present as “independent

nation|s],” this thralldom to the past is a kind of heteronomy, and because

generations on this view are in effect separate selves, it is an undermining of

self-governance.® Such a power is also of course asymmetrical, for though

the past guides and shapes the present, the reverse is not the case: the past is

unchangeable, it is the “what was and cannot now be otherwise.” Both the

non-consensual and asymmetrical character of the Burkean idea of the hold of

the past on the present, and their counterparts in our notion of a duty to the

victims of historical injustice, would seem to make them ill-suited to a world

that fashions itself as grounded in reciprocity and consent.

[B] In the preceding paragraphs, I have considered a generalized and broadly

liberal-democratic concern over the idea that the past, its deeds and denizens

should endure and come to weigh upon a wide swath of the political life of the

present. I now turn to a sketch of a narrower concern, but one closely related to

the central issues of this study. Here I begin with Ricoeur's observation™ that

first among those past persons to whom we owe our remembrance and recogni-

tion are the victims of historical injustice. Such a view, one that makes the past

victim central, has been at the root of the concern that in attending to the dead

in this way, we transform ourselves into agents of the victim’s (or her survivors’)

obsessional thirst for vengeance, a passion that has no concern for the present

or future consequences of such a path, nor for its effect on the well-being of

the community. In doing this, we embitter the present with irreparable ancient

wrongs. That fear is already fully evident in Sophocles’s Antigone and Aeschy-

lus’s Oresteia, where the unjustly treated dead help create a blood-spattered

present. And it is regularly invoked in explaining conflicts such as those in

Northern Ireland or the wars that befell the nations of the former Yugoslav

federation. Adopting the perspective of the victim of past injustice is by no

means always a path to the realization of present goods, or to reconciliation and

reconstruction in the here and now.®

A related concern (common to both ancient Greek and modern authors)

worries over making the victim’s perspective so central to doing justice. Moti-

vating this concern is less the temporal (‘another country”) dimension, or

indeed the dead and the living, than the displacement of the public and its

goods from the core of doing (criminal) justice. Though intimately related to

the fear of a bloody-minded, victim-oriented, vengeful justice, its emphasis is

rather on the respective roles of public and private self-help in seeing justice

done. Is that a process whose governing voice and purpose is the victim, her

grievances and their satisfaction, or the public, the city or state, with its civic

goods, for instance, security, the rule of law, deterrence, and reform? Seen from

that standpoint, the reemergence of the victim’s perspective, whether living and

present in the court room of a criminal trial or dead and represented in pro-

cesses directed to gross historical injustices, threatens a signal judicial achieve-

ment: the removal of the victim, her family and the desire for vengeance from

justice between past and present 55

the center of doing justice.8° The reappearance (in a represented form) of the

victim. of historical injustice as a central figure, whether in Gideon Hausner’s

opening speech at Eichmann’s trial,®” testimony in a TRC hearing, portrayed on a placard on the Plaza del Mayo in Buenos Aires, or memorialized on a monument: all seem to alter the relationship between the work of justice and

the priority of the public perspective.

(3) And finally, there is this issue. The “historical” of historical injustice

means at a distance from the present, where, it is said, we are called on across

this abyss of absence to address the past. Death, on the other hand, and regard-

less of its temporal distance from or proximity to the present moment, rad-

icalizes that distance, making it (seemingly) unbridgeable. We have already

outlined some facets of historical distance in, for example, looking at the ques- tion of the intergenerational transmission of injury and responsibility and at the problem of generations as remote from one another as independent nations,

yet with one ruling over the other, here the past governing the present. To

these can be added the following: (1) The distance in which the historical lies

appears to lessen the weight, the pressing quality, of that original wrong for us

in the here and now. The greater the temporal remove from the present, the

less imperative appears the need to address its injustice.®® Perhaps the passage

of time does actually untether us from the weight of past wrongs. Or perhaps

this diminishing significance is a distortion in moral perspective, just as distant

objects seem smaller than nearby ones.® It could be, of course, a time prefer- ence, that we now in the present would rather not be troubled by past wrongs

but only by matters current, those that most affect the living. (2) Concerned

also with the meaning of temporal distance for how we act in relation to his- torical injustice, but not grounded in issues of perspective and passing time,

is the question of determining the character of compensation for past injus-

tices, and its present beneficiaries, with the passing years.” One aspect of this

belongs under the heading of intergenerational justice and it asks why a group,

if they are not themselves suffering any present injustice, are nevertheless to be

seen as inheritors of and harmed by a past injury, and therefore as the rightful

beneficiaries of compensation for it. A related challenge looks to the problems inherent in justly calibrating present compensation to remote injury. Lastly, the

non-identity argument asks how we understand compensation for persons who

owe their present identity to an original injustice.”!

As important as these issues are, there is as I just suggested one that involves

a still more radical type of distance, an absence not understood as originating

in years of generational and other changes but in death as non-being. This

overlaps with issues of intergenerational/historical justice but raises additional and deep problems of its own. The passage of time since an injustice was com-

mitted, and the fact that in the most grievous cases, that injustice involved the

victim’s death, means that in addressing these crimes we are confronted by

a situation in which the absence of the victim is of the most profound kind.

7

56 Justice between past and present

The language of distance seems apt here, and it appears even in our vernacular

descriptions: the dead we commonly say are “departed” or “passed away.” At

the same time, the radicalness of that distance is marked, as Lévinas observes, by

the fact that this is a journey, a “departure,” without address or return. He adds

that, seen from the standpoint of the death of another person, it seems not so

much a change in or transformation of the subject’s way of being, but rather its

annihilation altogether.”? The metaphor of the past as an “independent nation”

in relation to us in the here and now does not fully express the (apparent) com-

pleteness of the rupture that death brings. For on one view, what separates us from the dead, here the victims of historical injustice, is more than distance

along a continuum.” “Past justice,” Max Horkheimer wrote, “has occurred

and is completed. The slain are really slain.”°* The victims of these injustices,

it would seem, belong wholly to the past and are in all respects irretrievably

absent. Because they do not exist as sentient, flesh and blood, creatures, their

injuries are irreparable and they are not vulnerable to further injury.” In sum, the dead seem to be (as Electra worries) mere “dust and nothing.” Beyond harm

or repair, without reason, voice, or interests, they are, in Hume’s words, a “per-

fect non-entity.”°° There are no duties to them as dead persons, with the result

that there can be no further harm done them.” If we take that account as definitive, then the language of doing justice to

the dead, of our duties to them (not laterally to our contemporaries or forward

to future persons),”® duties of remembrance for example, are either grounded in an underlying religious view or are a way of speaking obliquely about pres-

ent and future persons who either do already have these rights/status or will

one day have them. They at least will be subjects of justice who can be (in the

future) harmed or benefitted by our actions in the present. Whether the dead retain some part of their station as possible subjects of justice is thus key to how

we think about historical injustice and decide how to respond to it.” The rea- son for this is twofold. On the one side, the dead victims of injustice stand at the

center of these crimes, not only because the crime is inscribed on their persons

but also because they serve as a warning of the wrongness of subsequent inac-

tion or abandonment, and therefore as a call to resist the temptation to let go of

their past. It is after all they whose equal worth under justice was denied in the

crimes inflicted upon them; they who suffered and lost; they who were killed.

The victim and the assault on her equal dignity as a person and as a subject of

justice are not private injuries of interest only to the victim or her survivors, nor

are they simply moments in a causal narrative which terminates in some present

condition, some downstream harm to others, or in a future to be instructed by

this past. Rather their fate just is the crime, and the question for us, the living,

is whether we can and should care for these dead by doing justice to that victim.

And secondly, ifin death they are annihilated, not just in their flesh and blood,

but in all that made them persons, fellow citizens, co-religionists and family

members, then a past-looking, victim-oriented answer to historical injustice is

Justice between past and present 57

not possible. The present (and future) would then be the sole relevant temporal

registers for the doing of justice. In brief, the crime, its victims and perpetrators

would be understood as belonging wholly to the closed past, with no claims on

us and no ability to be repaired or punished. The irreparable and the radically

absent would then be the objects of remorse, regret, and a sense of loss but they could have no presence in the work of justice.

I began these pages with a discussion of the ways in which the pastness

of historical injustice (and the assumed present tense nonexistence of its once living persons) is in many accounts (and practices) replaced by a present and

future-oriented understanding of doing justice. I have sketched several possible

explanations for this. Broadly (and overlapping) these are: (1) the very limited

sphere of possible practical remedy in regard to the past; (2) the dominance of

the present in modernity, and correlated with that, the displacing of the nor-

mative weight of the past and of the idea of a community of the living and the dead; (3) a rejection of intergenerational indebtedness; (4) an ethical individual-

ist rejection of intergenerational (through belonging to a group) transmission

of injury and accountability; (5) the present and future-oriented commitments

of theories of distributive justice, evident for example in Rawls’s early work;

(6) the idea that the defining trait of pastness and death is radical absence, up

to the point of nonexistence. That absence, and the distance it expresses, raise

problems of the retroactive application of norms and laws, the fading of past injustices, and the determination of the appropriate and feasible response given the profoundly changed circumstances that death and the passage of time have

wrought. (7) And in particular, there is the apparently unbridgeable absence

that death, recent or long past, seems to yield. Nonexistence here would mean

there is no enduring subject of justice: past injustices might perhaps (as we said)

be a spur to secure greater justice in the present, a source of information about

how to establish it, or a deterrent to future injustice, but not itself within the

horizon of a possible doing of justice.

Understanding historical injustice, and reflecting on how it can be addressed,

requires that we raise the question of absence and distance, the results of pass-

ing time and of death. In particular, it requires that we address the sentinel’s

(Barnardo’s) question that opens Shakespeare’s Hamlet: “Who’s there?” That is,

it calls on us to ask after and clarify the status of the dead, those victims of his-

torical injustice, in relation to the community of justice of which they were and

perhaps are still members. To phrase the issue in this way, as the standing of the

absent, is both to point to a relationship between this question and more famil- iar topics concerning marginalization, social invisibility, silencing and recogni-

tion and to suggest that the dead remain in some way claimants on justice. It is also to suggest that when we refer to the absent, we do not (necessarily) mean

nullities or the nonexistent, but rather something missing, yet tarrying beside

us. That notion of an absent presence also fuels the sense that it is important to answer, recognize and name the victims of injustice, an intuition that would

58 justice between past and present

not make sense were they mere nothingness. Of course, such intuitions are by

themselves not an argument, much less a certainty. But they are an invitation to

us to ask if the absence of victims of injustice is complete and once and for all,

or whether their presence in justice endures in some manner or other.

Notes

1.

2.

10.

A fourteenth civilian, wounded on Bloody Sunday, died later from causes thought

to be related to the injuries he suffered that day.

Report of the Bloody Sunday Inquiry (Saville). 2010, National Archives (Government of the United Kingdom), August 2, 2013 <http://webarchive.nationalarchives.gov.

uk/20101103103930/http://bloody-sunday-inquiry.org/>.

. A cautionary note: as Urbain points out (in a discussion of a military cenotaph inscribed “To our absent”), the term “absent” can carry with it the sense that the

dead are not in fact dust and nothing. Jean-Didier Urbain, Larchipel des morts (Paris:

Payot et Rivages, 1998), 233, 236-7.

. See Louis-Vincent Thomas, Rites de mort. Pour la paix des vivants (Paris: Fayard,

1985), 7-8. . Observe that a similar ambiguity colors both references to the “absent” dead and

future-oriented phrases such as “those who one day will have life.” Both impute a

present reality to (on one view) the nonexistent.

. Report of the Bloody Sunday Inquiry (Saville), Inquiry Background. . “No ethics or politics... would be possible or conceivable or just which did not...

recognize respect for these others who are no longer or for these others who are

not yet there, living now, whether they are the already dead or those not yet born.”

Jacques Derrida, Spectres de Marx (Paris: Galilée, 1993), 15.

. On justice for the dead as in part a question of the treatment of diverse faiths see Tim Mulgan, “The Place of the Dead in Liberal Political Philosophy,” Journal of

Political Philosophy 7, no. 1 (1999): 52~70. and Axel Gosseries, Penser la justice entre

les générations: de Vaffaire Perruche a la réforme des retraites (Paris: Aubier, 2004), 131,

140. . Lutz Wingert, “Haben wir moralische Verpflichtungen gegentiber friiheren Gen-

erationen? Moralischer Universalismus und erinnerende Solidaritat,’ Babylon: Beitrége zur jiidischen Gegenwart 9 (November 1991): 78. There are of course excep-

tions to this, including Wingert himself: See also Janna Thompson, “Inherited

Obligations and Generational Continuity,” Canadian Journal of Philosophy 29, no. 4 (December 1999): 493-516; Pablo de Greiff, Manuscript, “The Duty to Remem-

ber: The Dead Weight of the Past, or the Weight of the Dead of the Past?,” in

Redeeming the Claims of Justice in Transitions to Democracy (N.D.); Jeffrey M. Blustein,

The Moral Demands of Memory (Cambridge: Cambridge University Press, 2008); Don Herzog, Defanting the Dead (New Haven: Yale University Press, 2017); Max

Pensky, “Solidarity with the Past and the Work of Translation: Reflections on Memory Politics and the Postsecular,” in Habermas and Religion, ed. Craig Calhoun, Eduardo Mendieta and Jonathan Van Antwerpen (Cambridge: Polity Press, 2013),

301-21. Axel Gosseries argues that intergenerational justice requires that we try

to understand the status of the dead. Gosseries, Penser la justice entre les générations, 140, Lukas Meyer also works a past-regarding argument into his study of histori-

cal justice. See especially Lukas H. Meyer, Historische Gerechtigkeit (Berlin: Walter de Gruyter, 2005). Communitarian theorists, for example Alasdair MacIntyre and

Janna Thompson, allow the past and its inhabitants a more prominent place.

Eduard Fagan, “The Constitutional Entrenchment of Memory,” in Negotiating the Past: The Making of Memory in South Africa, ed. Carli Coetzee and Sarah Nutall

11.

13.

14, 15.

16.

17.

18. 19,

20.

ai.

22.

23.

24.

25.

26.

27.

28. 29,

30.

31.

Justice between past and present 59

(Oxford: Oxford University Press, 1998), 251-2; Ruti G. Teitel, Transitional Jus- tice (Oxford: Oxford University Press, 2000), 88; Anthony Holiday, “Forgiving and Forgetting: The Truth and Reconciliation Commission,” in Negotiating the

Past: The Making of Memory in South Africa, ed. Sarah Nutall and Carli Coetzee

(Oxford: Oxford University Press, 1998), 46.

See for example Celermajer on the motivation for Germany’s apology for the Nazi-

era persecution of the gay community. Danielle Celermajer, The Sins of the Nation and the Ritual of Apologies (Cambridge: Cambridge University Press, 2009), 19 and relatedly pp. 172-3, 201 note 71.

. Recall the epigraph with which Ellison begins the Invisible Man “ “You are saved,” cried Captain Delano, more and more astonished and pained: ‘you are saved: what

has cast such a shadow upon you?’ Herman Melville, “Benito Cereno,” in Melville’s

Short Novels, ed. Dan McCall (New York: W.W. Norton, 2001), 101.

Mark Osiel, Mass Atrocity, Collective Memory and the Law (New Brunswick, NJ: Transaction, 1997); Mihaela Mihai, “When the State Says “Sorry”: State Apolo-

gies as Exemplary Political Judgments,” The Journal of Political Philosophy 21, no. 2

(2013): 204; Jaime E. Malamud Goti, “Punishment and a Rights-Based Democ-

racy,” Criminal Justice Ethics 10 (Summer—Fall 1991): 4, 6; Jaime E. Malamud Goti,

“Dignity, Vengeance, and Fostering Democracy,” The University of Miami Inter-

American Law Review 29, no. 3 (Spring-Summer 1998): 418; Celermajer, The Sins of the Nation and the Ritual of Apologies, 75, 172, 197-8. See Teitel, Transitional Justice, 62.

Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials

of the Holocaust (New Haven: Yale University Press, 2001), 2; Osiel, Mass Atrocity, Collective Memory and the Law.

Jeff Spinner-Halev, Enduring Injustice (Cambridge: Cambridge University Press, 2012), 42, 56-7. Spinner-Halev, Enduring Injustice, 4-6, 35—6. See relatedly Jeff Spinner-Halev, “From Historical to Enduring Injustice,” Political Theory 35, no. 5 (October 2007):

578; George Sher, “Transgenerational Compensation,” Philosophy & Public Affairs

33, no. 2 (2005): 191. Meyer, Historische Gerechtigkeit, 223.

Bernard R. Boxill, “A Lockean Argument for Black Reparations,” Journal of Ethics 7,

no. 1 (2003): 67-8; Gosseries, Penser la justice entre les générations, 117. Coates 2014. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), 151-2. Nozick, Anarchy, State and Utopia, 152, 230-1.

Gosseries, Penser la justice entre les générations, 117.

Meyer, Historische Gerechtigkeit, 4, 184; Lukas H. Meyer, “Surviving Duties and Symbolic Compensation,” in Justice in Time: Responding to Historical Injustice, ed.

Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesellschaft, 2004), 182.

Meyer, “Surviving Duties and Symbolic Compensation,” 182. Meyer, Historische Gerechtigkeit, 385.

Meyer, Historische Gerechtigkeit, 92-3, 223, 385; Lukas H. Meyer, “Einleitung,” in

Justice in Time: Responding to Historical Injustice, ed. Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesellschaft, 2004), 14.

Meyer, Historische Gerechtigkeit, 76-7, 92, 123.

Meyer, Historische Gerechtigkeit, 76~—7, 100, 184; Meyer, “Einleitung,” 14. David Heyd, “A Value or an Obligation? Rawls on Justice to Future Generations,”

in Intergenerational Justice, ed. Axel Gosseries and Lukas H. Meyer (Oxford: Oxford University Press, 2009), 167. Spinner-Halev, Enduring Injustice, 120.

John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 284.

. Rawls, A Theory of Justice, 287.

60

33.

34.

35.

36.

37. 38.

39.

40. 41.

42.

43.

44,

45, 46.

47.

48.

49,

50. . See Nozick, Anarchy, State and Utopia, 151-3; Thomas W. Pogge, “Historical

52.

53,

54.

Justice between past and present

Rawls, A Theory of Justice, 139-40, 288; John Rawls, Justice as Fairness: A Restate-

ment (Cambridge, MA: Harvard University Press, 2003), 160.

Rawls, A Theory of Justice, 287, 293—4.

John Rawls, Political Liberalism, Expanded Edition (New York: Columbia Univer-

sity Press, 2005), 20-1, 244—5. Rawls, A Theory of Justice, 126.

Rawls, A Theory of Justice, 128. Onora O’ Neill, Justice across Boundaries: Whose Obligations? (Cambridge: Cambridge

University Press, 2016), 74.

Axel Gosseries and Lukas H. Meyer, “Introduction: Intergenerational Justice and Its Challenges,” in Intergenerational Justice, ed. Axel Gosseries and Lukas H. Meyer

(Oxford: Oxford University Press, 2009), 3-4.

Rawls, A Theory of Justice, 128, 291. Brian Barry, A Treatise on Social Justice, vol. 1, Theories of Justice (Berkeley: Univer-

sity of California Press, 1989), 202; Jane English, “Justice between Generations,”

Philosophical Studies 31, no. 2 (February 1977): 92; David Attas, “A Transgenera-

tional Difference Principle,” in Intergenerational Justice, ed. Axel Gosseries and Lukas H. Meyer (Oxford: Oxford University Press, 2009), 199; Heyd, “A Value or an

Obligation? Rawls on Justice to Future Generations,” 167-9, 174-5. Rawls, Political Liberalism, 274 and note 12; Rawls, Justice as Fairness: A Restatement,

160 and note 39. Rawls, A Theory of Justice, 290-1; Attas, “A Transgenerational Difference Prin~ ciple,” 197; Barry, Theories of Justice, 183, 189, 202, 246; Heyd, “A Value or an Obli-

gation? Rawls on Justice to Future Generations,” 168-9, 184; Meyer, Historische

Gerechtigkeit, 385. See Michael Otsuka, Libertarianism without Inequality (Oxford: Clarendon Press,

2003), 141-2. Rawls, Justice as Fairness: A Restatement, 159.

See Rawls, A Theory of Justice, 291.

Rawls, Political Liberalism, xxiv ff. It is worth remarking that the Roman Catholic

beliefin a community of the living and the dead was one of the targets of the Prot- estant reformers. If Rawls’s speculation about the origins of political liberalism in

the Reformation is accurate, perhaps its silence on the dead as subjects of justice has

roots there as well. “The Reformation attack on the [Catholic] cult of the dead...

was an attempt to redefine the boundaries of human community, and, in an act of exorcism, to limit the claims of the past, and the people of the past, on the people of

the present.” Eamon Duffy, The Stripping of the Altars: Traditional Religion ia England c. 1400-1580 (New Haven: Yale University Press, 1992), 8.

Rawls, A Theory of Justice, 289.

“lElvery generation [of the nation], by virtue of being born into a historical con- tinuum, is burdened by the sins of the fathers as it is blessed with the deeds of

the ancestors.” Hannah Arendt, “Personal Responsibility under Dictatorship,” in

Responsibility and Judgment, ed. Jerome Kohn (New York: Schocken, 2003), 27.

Rawls, Justice as Fairness: A Restatement, 16 and note 16, 55~7.

Wrongs: The Other Two Domains,” in Justice in Time: Responding to Historical Injus- tice, ed. Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesellschaft, 2004), 124ff.

Rawls, A Theory of Justice, 288. See also Thompson, “Inherited Obligations and

Generational Continuity,” 502. Rawls, A Theory of Justice, 289. On free-riding in this context see Axel Gosseries, “Three Models of Intergen- erational Reciprocity,” in Intergenerational Justice, ed. Axel Gosseries and Lukas H. Meyer (Oxford: Oxford University Press, 2009), 134.

55.

56,

57.

58. 59.

60.

61.

62.

63. 64.

65. . Thomas Hobbes, Leviathan, edited by Michael Oakeshott (Oxford: Basil Black-

67,

68.

69.

70.

71,

Justice between past and’present: 61

See for example Susan Moller Okin, Justice, Gender, and the Family (New. York: Basic Books, 1989), 93-109; Joseph H. Carens, “Who Belongs? Theoretical and Legal Questions about Birthright Citizenship in the United States,” University of Toronto Law Journal 37 (Fall 1987): 413-43; Iris M. Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990), 16-18, 20-1; Seyla Ben- habib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge University Press, 2004), See David Heyd, “Ressentiment and Reconciliation: Alternative Responses to Historical Evil,” in Justice in Time: Responding to Historical Injustice, ed. Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesellschaft, 2004), 186. See Emmanuel Kattan, Penser le devoir de mémoire (Paris: Presses Universitaires de France, 2002), 37.

Duffy, The Stripping of the Altars: Traditional Religion in England c. 1400-1580, 8. Characteristic expressions of this reading of modernity as rejecting the weight of the past can be found in Alain Finkielkraut, Le Juif imaginaire (Paris: Seuil, 1980), 68; Vladimir Jankélévitch, Le pardon (Paris: Aubier-Montaigne, 1967), 74. Edmund Burke, Select Works of Edmund Burke, ed. Francis Canavan, vol. 2, Reflec-

tions on the Revolution in France, A New Imprint of the Payne Edition (Indianapolis: Liberty Fund, 1999), 123-7, 191-4. Thomas Paine, “The Rights of Man,” in Thomas Paine: Collected Writings, ed. Eric

Foner (New York: The Library of America, 1995), 438. “[IJt is sometimes said that these [democratic principles] require that the wishes of the present generation should determine social policy.” Rawls, A Theory of Justice, 295. Paine, “The Rights of Man,” 438. Emphasis and spelling as in the original.

Paine, “The Rights of Man,” 441. Thomas Jefferson, “Letter to James Madison (September 6, 1789),” in Writings, ed. Merrill D. Peterson (New York: The Library of America, 2011), 962.

Paine, “The Rights of Man,” 438.

well, 1946), 16. Rahul Kumar and David Silver, “The Legacy of Injustice: Wronging the Future,

Responsibility for the Past,” in Justice in Time: Responding to Historical Injustice, ed.

Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesellschaft, 2004), 147.

See relatedly David Hume, A Treatise of Human Nature, 1739, edited by L.A. Selby-

Bigge (Oxford: Oxford University Press, 1973), 261; Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984), 211-12, 275, 472.

James Madison, “Letter to Thomas Jefferson (February 4, 1790),” in James Madison: Writings, ed. Jack N. Rakove (New York: The Library of America, 1999), 475.

Emphasis and spelling as in the original.

Jefferson, “Letter to James Madison (September 6, 1789),” 963. Aristotle’s question

is whether, after a regime change, the newly founded political community is liable for the past, in this instance for the debts, fiscal and others, of its predecessor. To

answer that, Aristotle suggests, we first have to determine whether “a city [is] the same city as it was before, or not the same but a different city?” And if the same,

on what basis? Aristotle, The Politics, translated by Harris Rackham, Loeb Classical

Library (Cambridge, MA: William Heinemann, 1932), 1276A18—20.

David Grossman, Falling Out of Time, translated by Jessica Cohen (New York:

Alfred A. Knopf, 2014). . At the beginning of the Northern Irish report on dealing with the past, its two

principal authors wrote: “To look backward for a while is to refresh the eye, to

restore it, and fo render it more fit for its prime function of looking forward.” Consultative Group on the Past (Northern Ireland), Report of the Consultative Group on the Past

(Northern Ireland), ed. Lord Eames, Dennis Bradley, and et al., 2009 <https://cain.

62

73.

74.

76.

77.

78.

84,

86.

87.

388.

Justice between past and present

ulster.ac.uk/victims/docs/consultative_group/cgp_.280109_address.pdf>. Empha-~-

sis added. Parfit, Reasons and Persons, 357. See relatedly Palle Yourgrau, “The Dead,” Journal

of Philosophy 84, no. 2 (February 1987): 93. Meyer, “Einleitung,” 10.

. Hannah Arendt, “Collective Responsibility,” in Responsibility and Judgment, ed.

Jerome Kohn (New York: Schocken, 2003), 147. Meyer, Historische Gerechtigkeit, 10.

See Anne Muxel, Individu et mémoire familiale (Paris: Nathan, 2002), 14; Meyer,

Historische Gerechtigkeit, 243. George P. Fletcher, “The Storrs Lectures: Liberals and Romantics at War: The

Problem of Collective Guilt,” Yale Law Journal 111, no. 7 (May 2002): 1503, 1563;

Doris Schroeder and Bob Brecher, “Transgenerational Obligations: Twenty-First

Century Germany and the Holocaust,” Journal of Applied Philosophy 20, no. 1 (2003): 51; Anton Leist, “Deutsche Geschichte und historische Verantwortung,” Babylon:

Beitrige zur jiidischen Gegenwart 7 (September 1990): 55-46. On parallel difficulties

with the case for reparations see Eric A. Posner and Adrian Vermeule, “Reparations

for Slavery and Other Historical Injustices,” Columbia Law Review 103 (2003): 699.

. Meyer, Historische Gerechtigkeit, 229. . Khil Gelman-Zonenstein, “A la mémoire de Levertow” quoted in Les livres du sou-

venir, Mémoriaux juifs de Pologne, edited by Annette Wieviorka and Itzhok Niborski

(Paris: Gallimard, 1983), 51.

. Czeslaw Milosz, “The Nobel Lecture,” translated by Czeslaw Milosz, in Beginning

with My Streets (New York: Farrar, Straus and Giroux, 1991), 281.

. Paul Ricoeur, La mémoire, Phistoire, Voubli (Paris: Seuil, 2000), 397-8; Anne Got- man, Heériter (Paris: Presses Universitaires de France, 1988), 99.

. See Otsuka, Libertarianisin without Inequality, 133ff Meyer, “Einleitung,” 11; Gos-

series, Penser la justice entre les générations, 135; Victor M. Mufiiz-Fraticelli, “The

Problem of a Perpetual Constitution,” in Infergenerational Justice, ed. Axel Gosseries and Lukas H. Meyer (Oxford: Oxford University Press, 2009), 377-410.

Ricoeur, La mémoire, 108. . Consider Améry’s defense of resentment and non-forgiveness. Jean Améry, Jenseits von

Schuld und Stihne. Bewéiltigungsversuche eines Uberwiiltigen (Stuttgart: Klett-Cotta, 1977).

See Antoine Garapon, “Préface,” in Justice sans chdtiment. Les commissions Vérite- Réconciliation (Paris: Odile Jacob, 2009), 46-8; David Lowenthal, “On Arraigning

Ancestors: A Critique of Historical Contrition,” North Carolina Law Review 87

(2008-2009): 906; Denis Salas, La volonté du punir. Essai sur le populisme pénal (Paris:

Hachette, 2005), 15. 63, 65; Osiel, Mass Atrocity, Collective Memory and the Law,

153£f; Jean-Baptiste Jeangéne Vilmer, Réparer Virréparable. Les réparations aux victimes

devant la Cour pénale internationale (Paris: Presses Universitaires de France, 2009), 1. Hausner invoked “six million accusers. ... Their blood cries out, but their voice is

not heard, Therefore I will be their spokesman and in their name I will unfold the

awesome indictment.” “The Attorney General’s Opening Speech,” in The Trial of Adolf Eichmann: Record of Proceedings, vol. 1 (Jerusalem: State of Israel. Ministry of

Justice, 1992~—1994), 62.

George Sher, “Ancient Wrongs and Modern Rights,” in Justice in Time: Respond- ing to Historical Injustice, ed. Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesell-

schaft, 2004), 137; Spinner-Halev, Enduring Injustice, 56. Ernest Renan advanced an

argument in praise of forgetting. He urged French citizens to forget the past for the

sake of peace and of a political life-in-common. Renan argued that citizens have much to remember, but also much. to forget. The citizens of France, he writes,

should forget the St. Bartholomew’s Day massacre for such memories can only

divide the body politic. See Ernest Renan, Qu’est-ce qu’une nation (Paris: Agora, 1992), 41-2.

Justice between past and present 63

89, David Cockburn, Other Times: Philosophical Perspectives on Past, Present'and Future (Cambridge: Cambridge University Press, 1997), 153.

90. Jeremy Waldron, “Superseding Historic Injustice,” Ethics 103, no. 1 (October

1992): 15, 18; Posner and Vermeule, “Reparations for Slavery and Other Historical Injustices,” 740.

91. James Woodward, “The Non-Identity Problem,” Ethics 96 July 1986): 804-31;

Parfit, Reasons and Persons, 351€f Ori J. Herstein, “Historic Injustice, Group Mem-

bership and Harm to Individuals: Defending Claims for Historic Justice from the

Non-Identity Problem,” Columbia Law School: Public Law & Legal Theory Working

Paper Group, Paper Number 08-174 (March 3, 2008): 5, 9-10, 49-50; Meyer, His-

torische Gerechtigkeit, 15ff.

92. Emmanuel Lévinas, La mort et le temps (Paris: L'Herne, 1991), 10-11.

93. Cf. Meyer, “Einleitung,” 10.

94. Quoted in Walter Benjamin, The Arcades Project, translated by Howard Eiland and

Kevin McLaughlin (Cambridge, MA: Harvard University Press, 1999), 471.

95. Antoine Garapon, Des crimes qu’on ne peut ni punir ni pardonuer. Pour une justice inter-

nationale (Paris: Odile Jacob, 2002), 252.

96. Hume, A Treatise of Human Nature, 252. See also Meyer, Historische Gerechtigkeit, 78.

97. Meyer, Historische Gerechtigkeit, 81. —

98. See Axel Gosseries’ distinction between duties to (envers) the dead and duties in

relation (A propos) to them. Gosseries, Penser la justice entre les générations, 111, Duties

envers identifies an existing subject.

99, Blustein, The Moral Demands of Memory, 219; Paul Ricoeur, Vivant jusqu’a la mort.

Suivi de Fragments (Paris: Seuil, 2007), 36; Meyer, Historische Gerechtigkeit, 76.

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2 IS THE PAST A FOREIGN COUNTRY?

In the preceding pages, we set out to map parts of the archipelago of absence

and presence. Its islands include the present generation, past persons and societ-

ies, the dead, the not-yet-born, and the marginalized among the present and.

living—and (as Plato tells us) the activity of thinking itself! These locales differ

in many ways, and in that sense are insular, yet they are also loosely connected

with one and another and are accordingly places in an archipelago. All have a presence, again a varied one, in the land of the living, among the visible and

present. I suggested that in an intergenerational community, the question of who its relevant subjects are should make the standing of the dead an especially

important issue. Among other things, this means that in thinking about justice

for the dead, we need to be open to the possibility that it is not only the present generation (the living) that is to be counted as a claimant on justice, but also

those who are no longer and those who are not yet. In both instances, their absence, though different in character, has this in common: silence, invisibility,

and the potential for non-recognition. Those properties are also shared by the

marginalized in the present. Reflecting here on justice across time we see that

a core question is that of the temporal boundaries of our political community,

and in particular of our relationship to those members of it who are irretriev-

ably absent or not yet existent.

Of course, it is not only in addressing questions of justice across time that we encounter the unsettling distance that is absence. The past in its manifold

forms has the character of an absence. Its denizens are gone; its values, cultures,

and languages often experienced by us as remote and different from those of the

present. “The past is a foreign country: they do things differently there.”” The

absent character of the past shapes our (broadly) epistemic relationship to it, and

makes of it something other, remote and requiring translation or some other

Is the past a foreign country? 69

kind of bridge in order to be accessible to us. Historical distance, Michel de

Certeau writes, is constituted by just this absence.? Although there is an iron-

like fixity, an irreversibility, to the past tense,’ its relationship to us is always

changing. It sometimes seems to be part of a continuous community, but at

other times it may appear to be “a foreign country,” related to us (in Jeffer-

son’s phrase) as “one independent nation to another.” It thus invokes the work

of representation, of translation broadly understood, so as to bridge (however

imperfectly) that distance. The future, on the other hand, itself a domain of

absence, lacks the reality, the “having once been,” of past events and persons. Its occupants, their number, identity and preferences, indeed their very existence,

are unknown to us because they do not (yet) exist. Recall Hobbes’ observation

that the future exists only in the imagination, as a possible universe: “things to

come have no being at all; the future being but a fiction of the mind.’ Together

the past’s dead and the future’s not-yet-existing bracket the present and living.

They are absences but perhaps also a kind of presence among us and not there-

fore (as Hume wrote) perfect non-entities.

Bridging that distance without attempting to abolish it is the task of the his-

torian, memorialist, or writer of fiction. The work of the historian in particular

is one way in which we strive to reach beyond the horizon of our own time, to encounter something that we recognize though no longer visibly present

among us. It holds together the threads binding past and present, threads that

the passage of time (and the resulting distance and absence) seems to loosen.

It is a part of our relationship to the dead who, though irreducibly other and

distant, remain nevertheless intertwined with us.° The writing of history, then,

is one mode of passing beyond the insular boundaries of the (temporally) closed

community of the present.’ This making the absent present is also evident in the most ordinary locales of our life: in, for example, photographs of deceased

family members arrayed on a mantelpiece, days of remembrance, and planning

for future members of the family.2 The present, the visible, and the near-to-

hand may claim a certain epistemic dominance: as if the present is the domain

of the real and authoritative as opposed to what has being only in the “decay-

ing sense” of memory or in the imagination of the future. In Antiphon’s words

quoted earlier “men consider what they see with eyes to be more credible than

that which cannot be established with ocular proof” and “We are naturally disposed to notice things present, to hand and before us.”? Yet despite that

dominance, these interactions with the absent, from the scholarly writing of

the history of the marginalized to the everyday presence of the dead in familial

settings and so on all point (but not more than that) to a kind of broadly nor-

mative coexistence of past and present: the dead and the living, the visible and invisible members of the community.”

We have remarked on the problems that extension (beyond the temporally

and political-spatially closed community) sets for Rawls, for instance, the ques-

tion of justice across political boundaries and a (future-oriented) just savings

70 \s the past a foreign country?

principle. That absent past and future persons are the source of perplexities is

at least in part related to how we tend to think about doing justice. The chal-

lenge in brief is that those outside the temporal/spatial borders of this closed

community of living members (absent persons: whether the dead, yet-to-be-

born, the marginalized, or those in other political communities) are not seen as

(pervasively) bound to us in relations of possible reciprocity, nor as sharing fully

(or at all) in the community of justice that is ours.

In reflecting on whether and how to address past injustice, we acknowledge

that these absent victims are the dead, and that their departure is it seems a

once and for all event.!' Death in other words is (as Arendt argues) the outer- most radicalization of distance and disappearance, and the past person’s absence raises the question of whether there is any sense in which he endures (is pres-

ent) and can be addressed as a subject of justice.!? Given this conundrum (and,

as Gosseries suggests, our limited vocabulary to address it)! it is not surprising

that much of the philosophical literature on intergenerational justice bypasses

altogether questions surrounding justice for the dead, opting instead for an

orientation to the future or to the past’s effects in the present.’* The past can of course figure in such accounts but as I remarked earlier the dead typically func-

tion as part of a genealogical background narrative and not as possible subjects

of justice.

In all of this there is a reluctance to entertain the idea of the dead as having any kind of real presence. Drawing on Axel Honneth’s analysis, we might describe

it in the following manner. In western modernity, he writes, many (including

religious believers) have become naturalists in relation to death, That is, we take

it for granted, on the evidence of our senses, that death is the final and com-

plete end of a person’s existence.'® Seen from that vantage point, Horkheimer’s

words (quoted earlier) capture, brutally but accurately, the absolute terminus that

death is and the meaning of that for doing justice to the past: “Past injustice has

occurred and is completed. The slain are really slain.” And yet, Honneth contin-

ues, in reflecting on the dead we often allow for a certain disempowering of the

world, and for a non-naturalistic understanding of our relationship to the dead.”” For example, we consider it essential to treat their bodies with dignity, and not to speak ill of them.'® We keep cemeteries, those cities of the dead, close to us, in the

midst of the community of the living.!? And in specific contexts we remember

or commemorate them. Illustrations abound: in war remembrances, for example,

and in myriad religious texts and practices: Passover, Kaddish, the Catholic com- munion of the saints and the dead.*° In a passage closely paralleling Honneth’s

observations on naturalism and the dead, Gérard Macé writes that

Like a received idea, we repeat .. . that the dead no longer have a presence among us... but one has only to enter a room in which family souvenirs

are hung... . in order to see the dead who try for a moment to catch our

attention.”!

Is the past a foreign country? 71

This might lead us to question the naturalist understanding of the non-béeing of the dead, and its corollary that our obligations do not, cannot, extend to the

absent dead. We could rather infer from these intuitions that there are endur-

ing relations with the dead and real obligations to them, not simply about or

because of them.?? Because it was “out of the middle of our lives together [that] these singular crimes took place” those murdered during the Nazi years,

Habermas states, have a claim to the remembrance of later Germans.” “Out of

the middle of our lives together” (“aus der Mitte unseres Lebenszusammenhanges’’):

that shared world both grounds intergenerational responsibility and confers

on the dead (both perpetrators and their victims) a certain presence. The vic-

tims have a claim, and forgetting them or allowing their claims to languish in silence, would be to inflict a further injustice on them, a “second death.”*4 On

a more intimate, familial, level, we learn from Antigone and Electra that for-

getting or not caring for a deceased family member can be construed as an act

of betrayal of an ongoing relationship.?> Remembrance and the other ways in

which we engage and answer the dead appear, on this view, to have a norma- tive, obligatory, character. Of course, critics of this can respond that because

the dead simply do not exist any longer, doing justice must be of the present

(or future) and not the past. The rhetoric of the continuing and demanding

presence of the dead, and of our moral obligations to respond to that, are (so

the sceptic will urge) at the end of the day so many illusions, Illusions that, like

the tears of La Rochefoucauld’s mourners, are actually more for the comfort of the

living than the dead.?¢ In the midst of these debates, one issue stands out: the question of whether

there is a (broadly) normative relationship between the dead and the living,

including obligations in justice to them and for their sake (rather than that of

present or future people), duties to answer the wrongs done to the victims of

historical injustice themselves, not only to their posterity.?” The thought that we do indeed have such a relationship to the dead is, as we have suggested, not

at all uncommon and has as well a long philosophical pedigree, stretching back,

in the West, to Plato, Aristotle, and Kant. And it still remains a part of our daily

practice, especially in regard to remembrance.”® Yet, as we also acknowledged, death is an absence, a disappearance, of a particularly radical kind. That absence

makes questionable the idea of obligations owed to the dead. A response to that

challenge they are still subjects who persist in some manner or other and with whom we have an enduring, if profoundly limited, normative relationship.

Underlying the argument that the language of justice owed to the dead is

misplaced, and would be better expressed as obligations among the living, is the claim that there is simply no doing justice (or injustice) to past persons, no

relationship of any kind with them in their absence and pastness. We noted that

this does not have to (and usually does not) deny the relevance for the present

of past injustices or dead victims. What it insists on is that our relations of jus-

tice flow in one direction only, towards those present and future, and that they

72 \s the past a foreign country?

do so not out of a generation’s present time preference but rather because of

the circumstances of justice and the certainty that it is only in the present (and

future) that claimants on justice are to be found.”

To see how our intuitions pull us in different directions on this question of

justice to past people, consider the following illustration. In South Africa, as it

made the transition from apartheid to majority rule, a dairy company (Bonnita)

launched a political advertising campaign using the “spilt milk” theme: put the

past behind you, no good comes from crying over the past. “Why cry over spilt

milk ... when we can build a healthy nation. The past is just that . . . past.

It’s the future that’s important.”*° Likely our first reaction to this would be to

reject its attempt to sever our connection to the past and its denizens, the vic-

tims and perpetrators, as if their pastness absolved those in the present of need

to reckon them into justice’s accounting. Forgetting the past would seem to be

the wrong thing to do especially in cases such as this one where grave injustices

are involved. But again: who would wronged by our inaction, by our refusal to

“cry over spilt milk”? Past persons? What good or repair would such tears yield

for them? More promising is the claim that the class of those affected and owed a response would include present persons who are either themselves directly

the surviving victims of these crimes, or members of the same group as past

victims, the inheritors of those injustices and their downstream effects.*! Prob-

lematic, but plausible nevertheless, is the thought that future persons would

thereby lose whatever lessons and cautionary notes might be gleaned from

remembering this past.*? But most of all, we might assume, this willed amnesia would be a wrong to past persons, the original victims of these injustices, and a

violation of something owed them: truth, remembrance, solidarity, in a phrase,

recognition of their status as persons, citizens, and victims.” To fail to do this, to render them invisible in the last remaining tie binding them to their political

community—that is, as subjects of justice-——seems on its face a wrong, one that

parallels the injury in treating some group of our current fellow citizens as if they were invisible and therefore nonexistent as claimants on justice. In brief,

there is an intimation of an obligation here to a past person who is thus counted

a present subject of justice.

The assertion that dead persons are injured by our failure to recognize them

and to give them whatever justice is owed, however intuitive it may seem (as

in cases like the “spilt milk” response to the legacy of apartheid), still calls out

for an answer to Barnardo’s question that begins Hamlet: ““Who’s there?” Here

we might revise this challenge so that it now asks “who is injured?”** Indeed, how can posthumous misfortunes (e.g., if we fail to act in response to or to dis-

close the truth of the injustice done them) be assigned to the dead, if even the

moment of death itself cannot clearly be counted an injury to the now deceased

person?*> When there is a wrong, there must, it seems, be someone who suf-

fers a loss, whose condition is made worse in some fashion or other.*° On this

view, then, a rudimentary dimension of what it is to be a subject of justice is

Is the past a foreign country?.. 73

the capacity to be harmed.*’ For some, this means that only present and (more contentiously) future persons can be subjects of justice. An entity which cannot

be injured in these aspects of its being is without rights, and so without rights-

based claims against us, mere non-being or only past being and not a subject

of justice.2° They cannot be treated unjustly, nor can any restitution be made

to them; indeed there simply is no existing present tense “them.” So the not

uncommon intuition (and resulting practice) that something, if only remem-

brance, is owed to the dead, together with the related notion that we have a

continuing (normative) relationship with them, seem (to the naturalist) to rest

on a religious-metaphysical foundation, falsely claiming a continuing postmor-

tem existence of one kind or another for the dead.*°

The absence of dead persons, and hence their unavailability as subjects of

justice, rights-bearers or holders of an obligation binding us in the present,

seems also to apply to future persons. Yet that they should be a part of our

thinking about doing justice is in its basics a mostly settled claim. Both the

not-yet-born and those-who-once-were share in a radical absence in relation

to the present, one that appears to defeat any thought of doing justice or hav-

ing obligations to them. The one no longer existing, the other not yet having

being: both lie beyond the reciprocity that characterizes relations within the

same generation. In one aspect, future persons are even more wanting in those properties that would make them subjects of justice. For unlike the dead, who

once were enmeshed (and may continue to have some of that trait) with us in

relations of family, citizenship, faith, profession and so on, future persons have

not yet participated in any such fabric of intergenerational solidarity-producing relationships although they stand, so to speak, in the penumbra of our present

relationships, and will eventually be born to those relations. In short, their

presence as subjects of justice in the here and now is underwritten by the pro-

spective fact that they will one day be embedded in that mesh of relations

which is the political community. They are in a way abstractions, with no

individuating particularity, whereas the dead can have at least some of their

particularity reconstructed for them, as Patrick Modiano did for Dora Bruder,

and as is done in the works of those who represent them to the present, whether

in courts, histories, or collections of family photographs. Because the future

person does not yet have any individuating particularity, her identity,” prefer-

ences, relationships do not now exist. Future persons do not (yet) have a past or

future that is theirs; the dead have a past and future but are no longer its own-

rs,” that latter status now falling to their living custodians and representatives.

Or failing to be represented, and hence remaining unrecognized, invisible and unremembereéd, they suffer the “second death” of being forgotten. This actual (and not prospective) mesh of relations, of solidarity, obligations and histories

is absent from our relationship to future persons. Our obligations to the not-

yet-born are impersonal, and are part of the fabric of human embeddedness

to the extent that we imaginatively project that mesh forward. They are the

74 \s the past a foreign country?

obligations we have to the faceless and nameless, to the status of personhood/

citizenship they will have.

Another way of casting the difference between past and future persons, and

one that brings us closer to the heart of the idea that future persons, but not past

ones, are subjects of justice is something like the following. By our decisions in

the here and now we can harm future persons, even though the mutuality of

justice does not hold between us and them. Free-riding on the labor of the dead

seems to do them no harm, but abusing or squandering the goods we hold in

trust for the future does injure those who, though not yet in existence, will one

day be.*? This contrast between two groups of absent persons, and between the

sustainability of the respective claims of justice made on their behalf, is helpful

because it directs out attention to a core premise of much contemporary writ-

ing on justice across time. And that is the centrality of a particular understand-

ing of harm, of the capacity to be harmed as key to the idea of the person as a

subject of justice.

In outline form, here is how one version of how that argument proceeds. To

suffer an injustice is to be harmed. That is, it is to have one’s condition made

worse than it would have been had that injustice not occurred. But it is difficult

to see how the dead can be made worse off and so they cannot be harmed. Inca-

pable of being harmed, they cannot posthumously suffer injustice (or indeed

anything else).44 Now we could understand this as saying that the dead are no

longer persons because they have ceased to be a “locus of experiences.” As

Hume writes in A Treatise of Human Nature,

When my perceptions are . . . remov’d for any time, as by sound sleep;

so long am I insensible of myself, and may truly be said not to exist.

And were all my perceptions remov’d by death, and cou’d I neither

think, nor feel, nor see, nor love, nor hate after the dissolution of my

body, I shou’d be entirely annihilated . . . a perfect non-entity.

There is in short no longer a person, a locale of experiences, and hence no longer a subject of justice here: no one endowed with interests, preferences and rights which can be thwarted or advanced by the actions (or inactions) of oth-

ers.47 Barnardo’s challenge, “who's there?” will never receive an answer. For

nobody is there: the dead person is a “perfect non-entity.’8 One response is to accept that the absent dead are nonexistent and then to

propose that doing them justice means not to them as dead persons but to their

antemortem selves. A variant of this argues that although the dead do indeed

lack being, and thus are beyond harm or repair, the once living person can be

affected by actions after her death. In this way, the absent victim of injustice

remains central to our doing justice, and the injury done her is the reason for

the response, and not some generalized present or future public good.” [lustra-

tive of this approach is Joel Feinberg’s argument that a person’s interests survive

is the past a foreign’ country? 75

her death and can be thwarted even after her death.*° Note that although they are her interests, the proprietor is not the now dead self but rather the antemor-

tem individual. The thwarted interest, for its part, is understood objectively and

not as bound up with a subject in the present.*' The posthumous thwarting of interests harms not the dead person but their once living selves.>* There is no question here of doing justice to the dead. Rather, when we address wrongs it

is the injustice suffered by the once living person that presses upon us and not

the demands of the (nonexisting) dead.*? Another effort to set out a normative relationship between the living and the

dead should be noted here. This partially overlaps with the Feinberg’s account,

accepts (as does Feinberg) that the dead are beyond harm or help but that we do

nevertheless have a normative relationship with them via the future-oriented rights they had as living persons. Meyer’s notion of “surviving duties” seeks

to secure a moral relationship to the dead without having to assume that the

dead are bearers of rights and interests.** Relatedly, it allows for a symbolic, but

not real, alteration (repair) of that injustice-damaged relationship, once more

without having to assume that the condition of the dead is in fact changed by

our actions in the present.*> That relationship between the living and the dead

rests on the future-oriented rights of now deceased persons, and the duties they

convey to the living.>° This, as Meyer notes, is a future-directed normative

commitment, and not one addressed to the past. In that sense, it might seem

vulnerable to the critique that Meyer himself urges against approaches that dis-

regard the dead in favor of present and future persons.>’ The death of a person does not erase the fact that he existed, together with his future-oriented rights,

contracts etc.°° The duties that past persons generate can survive the death of

their original bearers and in this way yield duties in the present. In sum, these

future-oriented rights and the obligations they create in the present are not dis- solved by the death of their subjects.*?

For Meyer, when we carry out these duties to the dead we do not alter their

condition, though we do change our relationship to them. The relevant party

for our symbolic acts of repair is the living, and we express the limits of justice for the past by bracketing our response with a “we wish we were in a position

in relation to them [the dead victims of historic injustice] where we could give

them actual compensation.’ Our relationship to the dead, however, is altered

when, for example, we recognize an injustice done to them or posthumously

restore their good name, although the real [tatsdchlich] transformation is possible

only for the living.*' Now as I just suggested, this future-oriented approach

coupled with symbolic, not actual, compensation seems to resemble the side-

stepping of the normative relationship to the dead that Meyer is elsewhere

critical of. But in fact there is a normative relationship to the dead here, one

expressed in surviving duties and anchored in subjects with future-oriented

rights that they were when alive. The dead in this account are anchor-points for

duties still operative in the here and now. At the same time however the dead

76 |s the past a foreign country?

are not themselves subjects in any sense, and so actions addressing the injustices

they suffered are not said to affect them. The surviving duty argument thus

takes the past seriously while heeding the harms approach’s rejection of the

dead as enduring subjects of justice.

These efforts to construct a theory of harms done to antemortem persons,

or of surviving but subject-less duties, have in common an understanding of

the subject as an entity who can be harmed, ie., one whose condition (inter-

ests, wishes and so on) can be made worse off by a failure to do her justice.

Broadly, this suggests (as we remarked earlier) that at root we are bundles of

experiences.©? One response would be that in fact we are often made worse

off by events or actions that transpire outside the boundaries of our bodies and

awareness, including wishes about our posthumous fate.® If in this way the

connection between experience and harm is loosened, it might seem that a path is cleared to formulating the claim that the dead can be harmed. But in fact the question persists. As Axel Gosseries asks: how are we to understand the idea of posthumous harm? What is our point of contact with posthumous per- sons? Even ifin a symbolic (non-actual) way, past-directed actions, gestures of

recognition for example, can modify the dead person, it is difficult, Gosseries

concludes, to anchor posthumous injuries in the past existence of a person. At the same time, the notion of surviving properties, interests, preferences and so

forth, also seems unstable when they are detached from their subject.°° What Gosseries calls the “mortalist” thesis, namely that the dead are sim-

ply and entirely gone, and the experiential understanding of personhood both

deny the possibility of a relationship with the dead. These theses are of course

themselves controversial, not only among those whose religious beliefs provide

them with a different understanding of the person and of the meaning of death

but (as I remarked earlier) across much of the history of Western philosophy

as well, As early as Aristotle, it was argued that the fortunes of one’s surviving

relatives‘ have an effect on the well-being of the dead.’ And consider Kant’s alternative to the mortalist understandings of death, harm, and personhood.

In a brief passage in the Metaphysics of Morals on posthumous reputation, Kant

asserts that the dead can be done an injustice by false attacks on their charac-

ter.°8 Allow me to set out in more detail some of the central points in this, or at least those that bear most directly on the issues being discussed here. (1) A dead

person, he argues, can be harmed by slanders directed against his character.

(2) Kant writes that the preceding claim does not depend on any notion of an

afterlife or soul.® (3) A dead person no longer exists in the phenomenal sense and because of that his relationship to the things of the world ceases with his

death. In that experiential sense he cannot be harmed. (4) But the person can

also be regarded, in the absence of these embodied characteristics, as a nou-

menal being having an intrinsic dignity.”” This abstraction from an embodied

and temporally situated condition extends our status as persons beyond the confines of our lives. (5) Think of this process of abstraction as reflected in

(what Kant termed) a Kingdom of Ends, a representational device populated

Is the pasta foreign country? 77

not by embodied persons with their interests, preferences and so on but rather

by persons as moral agents with the dignity inherent in that status. The passage

of time, and the dust-to-dust of human flesh, would not affect them, and so an

injustice done would not wither with the years nor be dispersed to the winds

by the death of the victim, Human beings on this account have obligations to

one another on the basis of their common status as ends-in-themselves, and the

“right of humanity as such.””! The flow of time and the demise of the body do

not diminish this noumenal status, their personhood, nor the recognition and

respect that it demands of others.

From this vantage point, the defining property of personhood, and the bed-

rock of normative relations between persons, is their shared status as moral

agents, a standing not rooted in their embodied and temporally-circumscribed

presence. They are more than bundles of experiences. In life, the treatment

owed to persons who are “above all price”? is grounded in their being ends-in-

themselves. In death, their bodies and external goods are no longer present but

their status as persons with a dignity beyond all price remains. It is not, Kant adds,

that in death they become some different kind of being, a “spiritual” one, or a

“disembodied soul,” but rather that their status as humans was at its core never

understood to be dependent on their flesh and blood existence, on their being

“locuses of experience.” Death abolishes once and for all that latter existence

and its related possibilities of the experience of harm. But on Kant’s account it

does not affect their dignity and its corollaries, in particular the demand for rec-

ognition and respect together with the harm that would be involved in failing

to treat them in accordance with that status. In the Kingdom of Ends, in which

embodiedness and spatial/temporal location are absent, only our moral status

and its associated duties govern relations among us.” The Kingdom of Ends

could not represent a closed (temporally or spatially) community. Its denizens

are not characterized in terms of generational, bounded communities of citizen

cooperation. Rather, they are persons sharing and recognizing in one another a

common and universal moral status.” Abstracting from the temporal and spatial

boundaries of the present generation of a closed community, the dead and the

living become in that limited way indistinguishable, and both can be harmed.

Their relationship to one another, and the mesh of obligations that stands at its

core is, on the Kantian view, not conditioned by their embodied selves but by

their status as moral beings. So too on that account is the motivational question

that troubles Rawls’s argument about the just savings principle entirely absent

since respect for the moral law and the dignity of its agents is both necessary and

sufficient, indeed (for Kant) it is the only adequate motivation.

The idea of the status of the dead in Kant’s Metaphysics of Morals is one expres-

sion of an underlying (and much contested) distinction between phenomenal

and noumenal. Having argued in the first Critique that the noumenal is not

situated in space and time and is not therefore subject to the laws that govern

experience, the noumenal self of moral personhood is not the embodied, expe-

riential self of the phenomenal domain.’”> However, Kant is not here giving an

78 = |s the past a foreign country?

account of two worlds, the phenomenal world of experience and the noumenal,

non-experiential and therefore always only ambiguously knowable. Rather, as

he writes, “The concept ofa noumenon is... a merely limiting concept, the func-

tion of which is to curb the pretensions of sensibility.””° Having thus limited the scope of the knowledge claims of the world as it is given to us in experi-

ence, the “pretensions of sensibility,” a space is opened in which Kant can develop

the idea of moral personhood (and, as he writes in the first Critique, to “make room for faith”) so that it allows for a kind of self that endures past death, and

that without having to assert the existence of, for example, an immortal soul. Needless to say, the claims that underpin Kant’s arguments here have long been

intensely controversial.”” Nevertheless, these (“two standpoint”) arguments

amount to an effort at the “disempowering” (Entmachtigung)’® of the naturalist

perspective, meaning, for Kant, the attempt to limit the claims of experience to

be the sole basis of knowledge.

If Kant’s account of the status of the dead, and of our moral relationship to

them, rest on a highly controversial set of assumptions, it is still suggestive. His

notion of the two standpoints”? argues that the human subject can be seen in her

empirical presence, a being embedded in space and time, subject to the causal

laws governing all phenomena and endowed with the passions and interests

common to human beings. Or she can be seen in her intelligible or noumenal dimension: a free cause, acting under self-given law, sharing with other like

creatures not the same passions but the priceless dignity of a moral subject.

What this offers us is an alternative to the bundle of experiences understand- ing of the subject. Persons, for Kant, are to be sure situated in time and space,

governed by the same laws as the rest of nature, and endowed with desires,

preferences, and interests. Yet seen from that other standpoint, as a being with

moral-practical reason, she has a dignity, a worth above all price. That way of

being she shares with her fellow humans, and it provides the guiding thread for their lives together, whether expressed by Kant in the Kingdom of Ends, the

social contract as the original position, or the Platonic republic as an ideal of

pure practical reason. Kant’s argument, then, does not deny the embodied, historical, and experi-

ential character of our identity and of our relations with one another. Indeed,

as I remarked earlier, it is just that flesh-and-blood nature that causes us to experience the moral law as an imperative, and to need a law-governed political order to secure our external freedom. Yet it is not exhaustive, and the presence

of the “moral law within” grounds a different kind of relationship to others, one not formed by our embodied, temporal existence. In that way, death is

acknowledged as the once and for all termination of what we are as bundles of experience, as beings in the world. What does not vanish, on Kant’s account, is

the status of personhood, and the relational obligations associated with it. The Kantian argument holds that though the dead “no longer exist” as bundles of

experiences,®° and hence cannot be harmed, the person, who we understand

Is the past a foreign country? 79

in abstraction from this embodied form, does persist as a claimant on justice. He is seen as enmeshed in relations of justice modeled on those set out in the

representational device of the Kingdom of Ends, including the recognition of

other autonomous beings as such subjects.®! If the Kantian path to grounding our enduring relationship to past persons

lies in the idea of a shared moral (noumenal) standing and community, another

road to that enduringness proceeds in a quite different direction, by embedding

us in a particular historical community extended across time. Such an approach

seeks persistence in historical time and change rather than in a time- and space-

less noumenal domain. It too challenges the notion that the passing of the years, and with that death and generational change, must inevitably have a solvent-

like effect on the particular ties of community. As we have suggested in the

preceding pages, the passage of time can be seen as creating a distance between

the living and earlier members, an otherness, indeed an invisibility that charac-

terizes these past denizens of our community.*? And of course, in the case of the

dead, they are not just strangers but radical absences, perhaps even non-beings,

a “perfect non-entity.” In short, a possible response to this, broadly Kantian in

character, is to conceive the community, in one of its aspects, as not subject to

the transitoriness that is part of its existence in space and time. A second path

argues for an intergenerational community, the embedded members of which

continue across time to stand in a moral relationship to one another. Those per-

sisting relationships are, on this account, grounded in the community-across-

time of which they are a part.

Allow me to sketch here some lines of argument developing this latter claim.

Hume wrote that “in our common way of thinking we are plac’d in a kind of

middle station betwixt the past and future . .. our ancestors... . and our poster-

ity.”*? Time, on this view, is the lived extension of human relationships (ances-

tors, posterity). Death and the passage of time do not erase these relationships,

though they of course alter them profoundly. Not only does the flow of time

not undo those ties, but any moment in it has the character of a ““betweenness.”

There is, in other words, no pure or insular present, no here and now which

does not at the same time stand in the shadow of the past and its relationships

and in an imagination, or anticipation, of future ones. Lived time is always,

in Hume’s word, “betwixt,” and is not bracketed by abstract past and future

time but rather is located in a “middle station” between “our ancestors” and “our posterity.” Hume’s (and Burke’s) language of ancestors and descendants

is that of a family arrayed across time. Some of their ties will be of the one-

to-one kind: individual acts of contract and agreement, such as wills that can

bind persons even in different generations. Other ties we might describe as

broadly affective: the emotional/relational bonds that are part of the fabric of these small communities—love, pride, hate and so on——can and often do persist

beyond the lives of particular persons, becoming part of the tissue of an inter-

generational community.

80 Is the past a foreign country?

A dimension of the family that brings us closer to its normative intergen- erational ties is its role as a locale of property relations arrayed across time and

generations in repeated acts of inheritance, stewardship, and transmission.

Perhaps the best known of such efforts to use the notion that as members of

societies we in the present are like stewards over an intergenerational family

commonwealth is Edmund Burke’s, and especially the relevant discussions in

his Reflections on the Revolution in France to which I now want to return. Con-

cerned that the instrumental and individualist idioms of revolutionary moder-

nity would grind society into “dust and powder . . . dispersed to all the winds

of heaven,” Burke urges that we, the “temporary possessors” of our societies,

should be mindful of “what [we] have received from [our] ancestors [and] of

what is due to. . . posterity.”®> Without that sensibility, “the whole chain and

continuity of the commonwealth would be broken. No one generation could

link with another. Men would become little better than the flies of a sum- mer”: creatures of the moment, and not members of an enduring partnership

“between those who are living, those who are dead, and those who are to be

born.”8 The image of the family here helps Burke to understand the political

community as an enduring body.®’ The intergenerational community means, for Burke, that it is not at any

given moment under the sole discretion of its living members but is theirs as an “entailed inheritance,” derived from our predecessors and to be handed

on to our posterity.® The obligations that Burke is claiming here, to inherit

with gratitude (to the past), to steward and transmit those resources to future

generations intact or improved depend squarely on the idea of “betweenness”:

that there is an intergenerational community of obligation, to which belong

past members, the living and those yet to be born. Without that temporally

extended community, we would in Burke’s phrase be “flies of a summer,”

and our commonwealth an entirely evanescent thing, to be despoiled without

regard to the labors of those who bequeathed it to us or to the needs of posterity.

But what exactly is it that makes this a single community of obligation,

arrayed across time? Burke sometimes speaks in the language of reasoned

choice in pursuit of interests, describing the community as a contract, but of

an intergenerational kind: “Society is indeed a contract . . . not only between those who are living, but between those who are living, those who are dead,

and those who are to be born.”®? More common than this contractarian for-

mulation is what de-Shalit calls the “fraternity” model, the skein of emotions

and affective attachments:

we have given to our frame of polity the image of a relation in blood,

binding up the constitution of our country with our dearest domestic ties,

adopting our fundamental laws into the bosom of our family affections.”

For Burke this long-enduring community is a thick one, composed of institu-

tions, constitutional frameworks, social and economic position, that is, ranks

Is the past aforeign country? 81

of various kinds, religion, and so on. Here I have picked out a more limited

thread, namely, that the Burkean contractarian, affective, and proprietary idi- oms are so many variants of the underlying thought that the community per- sists and that this enduring society, this skein of relationships and attachments,

is the setting in which we living in the present are part of a community of

obligation, extended across time, to past and future members.”!

We can think of the foundation of enduring communities of obligation in still another way: on the analogy of the integrity, the wholeness, of a person’s life. We

assume a continuity throughout that person’s life and hold her accountable for her

past, despite its pastness and distance, and however great the manifold differences from her present may be.”? So likewise, in the integrity of a life, we understand

her as having responsibilities to her future self, though there too that future does

not yet exist and is not (fully) knowable. Change and the passage of time do not

dissolve her relationship to her earlier self or actions, though distance in time may mitigate the response of others to them.”? Ronald Dworkin argues that we

should, for comparable reasons of the integrity of the community, in a fashion

consider the state or community as we do a person, considering it as an institution

acting across time according to basic principles.°* This personification of the state

is not a metaphysical exercise: it does not claim an existence for the community

independent of its shifting cultures, practices, and languages.” But it does insist on corporate responsibility, one not reducible to a person-by-person accounting.

Dworkin argues that there is a sense in which we correctly speak of, for instance,

German collective responsibility for the Nazi crimes of World War Two, and in

a way not analyzable down to the level of individual culpability.°° Individuals are

embedded in communities which are intergenerational locales of responsibility.

We might then say that the skein of obligations and attachments stretches from

the past into the present and forward to the future, binding the living, dead, and

the not-yet-born in an enduring community.

Here I want to underscore that these efforts to set out the grounds of an

enduring community, typically expressed in its basic institutions and consti-

tutional principles, also thereby point to the foundation of relations of justice

across time, including those with past and future persons, the dead and the not

yet born. If we accept that there is such a continuous political body, with an

integrity rooted in its core precepts and the institutions that express and carry

them forward, then we might conclude that the persons past, present and future

embedded in it participate in a shared community and so have obligations to one another. One way of understanding this continuity is to consider the com- munity as a transgenerational site of moral-political inheritance.*’ Belonging to enduring communities, we (as members) bear a responsibility for what was

done before our time but which we, as members, inherit. And (again as mem-

bers) we are responsible to those who will come after our time, and who will

inherit what we leave for them: in Nietzsche’s words: the “solidarity of chains

of generations, forward and backward.”** As inheritors of the community’s past, we are bound to it in relations of solidarity, often expressed in remorseful

82 Is the past a foreign country?

memory or in gratitude.” Although inheritance itself need not necessarily

require the existence of past subjects who remain as claimants on our gratitude,

or who merit our regret and condemnation, the terminus of these normatively

driven responses of thankfulness, condemnation, or remorse seems intuitively to be the originating subjects, e.g., the victims or perpetrators.

And this points to a shared moral world with the past and its persons, a minimalist version of the enduring community argument, with its counterpart being the Burkean view of a community of dense obligations and institutional continuity across generations. On either version, the community shared with them (and with future people) gives these absent persons a presence, if only of a radically limited kind. They are not of course present as they were in life but they are unmistakably there in a different form: held present in the mesh of relationships we share with them, embedded in the binding obligations woven into the community arrayed across time, a mesh that constitutes both that com- munity and a fundamental part of the identity of its members.

It is partnership in these things [shared perceptions of excellence and baseness, the just and the unjust] that makes the household and the city... and the city is also prior by nature to the individual [as the whole is to the part].10°

If the idea of a persisting community seems to offer a way to think of the continuous normative presence of its past members, and that without recourse to religious beliefs about the dead, it nevertheless is burdened by significant dif- ficulties, some of which I referred to earlier and will now revisit and elaborate. These might be grouped into the following kinds: (1) the dead hand of the past and the lack of deliberative reciprocity; (2) group-based accounts of responsi-~ bility; (3) determining the location of persistence. Let us consider each of these in turn. Ad (1): the dead hand critique has a range of formulations and Burke’s way of understanding the relationship between past and present is well suited to be a target for this line of criticism. As we remarked earlier in this study, Paine’s response to Burke sets out part of this critique:

There never did. . . exist... any generation of men... possessed of the right or the power of binding and controuling posterity to the end of time... Every age and generation must be free to act for itself... Burke is contending for the authority of the dead over the rights and freedom of the living.'°!

Paine here addresses the issue of our relationship to laws, institutions, and poli- cies adopted by earlier generations, saying that the temporally extended view binds us to preserve those laws and institutions and transmit them, as though we in the present are merely their custodians. That we did not consent!®2 to those institutions, enjoy no reciprocity of influence with their creators, and yet

Is the past a foreign country? 83

are asked to subordinate our wills to their dead authors seems an abdication of

self-governance.

It is of course also quite likely that Paine’s critique was motivated in part by what he saw as the broadly preservationist intent of Burke’s Reflections, that

is using the idea of a temporally extended community and its attendant and

extensive structure of inherited institutions and obligations as ballast, as an

effective brake on progress.'? Of greater theoretical interest, however, is the argument underpinning Paine’s rejection of the idea of political community as

an “entailed inheritance.” And that is the claim that as free persons we come to

have duties by our own volition and consent and not by virtue of our belonging

to a community of inheritance. The thought that there are obligations, inher-

ited ones, that are ours by virtue of the fact that we are temporally downstream

from earlier generations of our community, poses difficulties for this broadly

liberal-voluntarist account of obligation. Nietzsche, writes about this core dif-

ference, calling the intergenerational model: “A kind of will . . . which is

anti-liberal to the point of malice: the will to tradition, to authority, to respon~ 404 sibility for centuries to come.

Arelated challenge emerges out of the claim that we can inherit responsibil-

ity for past actions of earlier generations. Key here is the assertion (discussed

earlier) that responsibility or guilt is somehow transmitted, passed from one

generation to the next, almost in the manner of classical Greek notions of

pollution.’ It is a commonplace that much of liberal modernity is sharply

at odds with the notion of inherited responsibility or guilt: in Justice Robert

H. Jackson’s celebrated dissent to Korematsu v. United States, he wrote “if any

fundamental assumption underlies our system, it is that guilt is personal and

not inheritable. Even if all of one’s antecedents had been convicted of treason,

the Constitution forbids its penalties to be visited upon him.” And that for

two quite familiar reasons. (1) Liberalism’s ethical individualism condemns the

notion of collective guilt regardless of its temporal framing though that guilt

is made more problematic still when responsibility for it is seen as intergen-

erational, and is thus attributed to (temporally downstream) actors who did

not exist when the original wrong was committed.!° On this view, matters of

guilt and innocence belong in the first instance to individuals, or to corporate

entities with corresponding features.'” (2) A second concern focuses not on the unit of analysis, individuals versus groups, but on the role of volition in

claims of intergenerational responsibility. If those latter claims use inheritance

to mean that regardless of the relationship between our will and the relevant

deeds we are tainted by them simply by virtue of our membership in a group

then accountability and agency seem too separated to give a credible theory of

an intergenerational community of responsibility.

David Lowenthal asks: who is responsible for ancestral crimes?!°® We in the present? No one now alive? One response to this difficulty is to move the seat

of inherited guilt or responsibility away from the individual or group level to

84 Is the past a foreign country?

that of cross-generational political institutions, typically of a state-like kind.'

As members of an enduring political community, we are part of a state under-

stood as having integrity across time. And as such we are responsible for the

actions of our citizen predecessors.''? Note that this move is tenable only with

the addition of the following assumptions: (1) that what Dworkin calls the

deep personification of the state, and specifically its normative integralness over

time, is a defensible position. As I remarked earlier, integrity here suggests that

the state is considered as if it has the moral unitariness that a person would have

over the course of her life. And having such a unity across time, the person or

her analogue at the institutional level, is the owner of that past. And this seems

to depend on the further claim that the state is, in a morally relevant sense, the

same across time.

Is our present state one (in the sense described in the previous pages) with

the earlier institutional forms our political community took?! An affirmative

answer would require a degree of identity of fundamental principles governing

the basic institutions.'!? And it would also demand a decision-making structure

of a certain kind.!!3 That is, in order to conceive of a community of responsibil-

ity across generations on the basis of its enduring political institutions we would

at a minimum want that state to be the agent of (authorized by) the community

and not merely a power superimposed upon it. In other words, we would look

for a state of a broadly representative-democratic kind. So the actions of past

American Congresses and Presidents, for example those of the Vietnam War

era, are more clearly a part of an intergenerational community of accountability

than, let us say, the decisions of a Brezhnev and the CPSU Politburo regarding

Afghanistan are for the peoples of the post-Soviet Russian Federation. Further

complicating this idea of the state and its identity across time are the effects of

political rupture that have figured so centrally in this past century but which

were already the subject of reflection in classical Athens, itself no stranger to

revolutions. Thus, as we noted earlier, Aristotle asks whether, after a regime

change, the newly founded political community is liable for the past, in this

instance for the debts, fiscal and others, of its predecessor. To answer that,

Aristotle suggests, we first have to determine whether “a city [is] the same city

as it was before, or not the same but a different city?”'* And if the same, on

what basis? Consider in this regard, the emergence of democratic Germany

out of the defeat of the Nazi regime; the collapse of the Soviet empire and the

birth of democratic regimes in Eastern Europe; apartheid and democracy in

South Africa; and juntas and their democratic successors in Latin and Central

America. In these and other instances, it is often profound rupture rather than

continuity that characterizes the institutional history of political communi-

ties. Where the past is freighted with non-democratic regimes, which cannot

be described as in any sense representative of the popular will, we seem to

fall short of the demands of the intergenerational state as the principal vec-

tor of normative-institutional integrity (identity) across time in an enduring

Is the past a foreign country? 85

community of responsibility. And it falls short not simply because of the radical change in regimes, but because in many of these cases the state under which gross injustices were committed was not representative of even its living mem-

bers, making implausible the claim that the political community as a whole

bears responsibility for these injustices, much less that those who came after its

demise inherit responsibility for them.

The continuity-of-the-state approach appears unable to ground fully an

enduring normative community both because of its necessary and limiting

democratic-representative character (needed to establish the co-responsibility

of the temporally extended community) and relatedly because of its difficulty

dealing with the meaning of regime change for the normative persistence of

the political community. That said, other approaches seem equally ill-suited to the task. Shared ethnicity or ethno-nationalism would make inheritance of

responsibility something transmitted through blood lineage. A continuity

of tradition approach for its part is too broad, given that the relevant traditions

will likely flow over the boundaries of the political community in question. At the same time, it seems too narrow to include the dimension of agency needed

to bind these practices to accountability for the past (or responsibility to the

future).

We began by suggesting that a voluntarist understanding of duties across

time cannot account for much of the political phenomena that we are try-

ing to grasp. The spheres of will, contract, promise and so on are simply too

restrictive to allow us any significant purchase on many of the obligations to

the past and future that we acknowledge as binding us in the present. We noted that a promising alternative seemed to be an understanding of the community

as an enduring body with successive generations as its temporary proprietors,

inheriting and transmitting their commonwealth, and bound to past and future

citizens in a mesh of broadly normative relations born of shared membership

in that enduring community. This approach is of some considerable interest

in that it points to a range of cross-time relationships different from those

that can be mapped out in terms of rights, harms and so on. At the very least,

it offers the thought that not all normative relationships in a community are

at their core rights~based.1® That wider horizon, framed (in one formulation) as responsibility for and inheritance of the past and stewardship for the future

within a persisting community, allows us to discern a more complex mesh of

normative relations. And what is more, it suggests that the bonds of reciproc-

ity, concern and responsibility are not (entirely) severed by death or distance in

time, though they certainly are profoundly transformed by the passing of time

and the radical absence of the dead. The binding threads of an enduring com- munity mean that neither the past nor the future, and their respective denizens,

are completely foreign but are rather a shared community in an archipelago

of presence and absence. We also found that embedding our relations to per-

sons past and future in a persisting institutional-political community of which

86 |s the past a foreign country?

we are merely the present place-holders also encountered significant difficul-

ties. Some of these obstacles come to light only in confrontation with liberal notions, such as intergenerational responsibility, group accountability, and so

on. Others raise more general issues, centered around the question of what it is that persists in the enduring community, and how, whatever that is, it meets the

relevant identity and normative desiderata for a theory of a continuous commu-

nity of justice. In the following pages, I will turn to other conceptualizations

of an enduring community that sustains the presence of the dead (and future

persons) as limited subjects of justice.

Notes

1.

nN

10. . Michael Theunissen, “Die Gegenwart des Todes im Leben,” in Tod und Sterben, ed.

Plato, Plato: In Tivelve Volumes, vol. 1, Phaedo, translated by Harold North Fowler,

Loeb Classical Library (Cambridge, MA: Harvard University Press, 1977), 64a. Arendt draws out the connection between things unseen, the wind and the soul, death (the “most radical experience of disappearance”) and the Socratic view of thinking the unseen. Hannah Arendt, “Thinking and Moral Considerations,” in

Responsibility and Judgment, ed. Jerome Kohn (New York: Schocken, 2003), 165,

167, 175. Emphasis in the original. . Leslie P. Hartley, The Go-Between (New York: NYRB Classics, 2002), 17.

. Michel de Certeau, “Histoire et structure,” Recherches et débats 68 (1970): 168; Mau-

rice Merleau-Ponty, Phénoménologie de la perception (Paris: Gallimard, 1945), 473; Francois Dosse, Paul Ricoeur, Michel de Certeau. |’Histoire: entre le dire et le faire (Paris:

LHerne, 2006), 28.

. Vladimir Jankélévitch, L’irréversible et la nostalgie (Paris: Flammarion, 1974), 7.

. Thomas Hobbes, Leviathan, edited by Michael Oakeshott (Oxford: Basil Blackwell,

1946), 16. . Certeau, “Histoire et structure,’ 169-71; Michel de Certeau, “Histoire et mystique,”

Revue d’histoire de la spiritualité 48 (1972): 72-3. . See Lukas H. Meyer, Historische Gerechtigkeit (Berlin: Walter de Gruyter, 2005), 205;

Karl Schlégel, Im Raum lesen wir die Zeit (Frankfurt am Main: Fischer Verlag, 2006),

313.

. Gérard Macé, La mémoire aime chasser dans le noir (Paris: Gallimard, 1993), 25; Patrick

Gaboriau, La présence et l’absence (Paris: UV Harmattan, 2016), 51, 76. . Antiphon, “Fragments,” translated by K.J. Maidment, in Minor Attic Orators. Anti-

phon, Andocides, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1941), Fragment B, p. 15, Fragment C, p. 3. And see Roy Sorensen, Seeing Dark

Things: The Philosophy of Shadows (Oxford: Oxford University Press, 2008), 16, 217;

David Cockburn, Other Times: Philosophical Perspectives on Past, Present and Future (Cambridge: Cambridge University Press, 1997), 11 note 8, 22-3; Hannah Arendt, Love and Saint Augustine, translated by E.B. Ashton, edited by Joanna Vecchiarelli

Scott and Judith Chelius Stark (Chicago: University of Chicago Press, 1996), 14; Jean-Luc Marion, La croisée du visible (Paris: Presses Universitaires de France, 1996),

96-7. Sorensen, Seeing Dark Things: The Philosophy of Shadows, 19.

Rolf Winau and Hans Peter Rosemeier (Berlin: Walter de Gruyter, 1984), 115. The

Phaedo’s account of Socrates’s friends’ dismay and tears as he drinks the poison (117c-

d) suggests they understand the radicalness of their imminent separation from him (115d-e), even if they are convinced by his argument for the immortality of the soul

and its rebirth among the living (113).

12.

13.

14.

15.

16.

17.

18.

19.

Is the past a foreign country? 87

Paul Ricoeur, Parcours de la reconnaissance, Thois études (Paris: Stock, 2004), 99; Paul

Ricoeur, Vivant jusqu’d la mort, Suivi de Fragments (Paris: Seuil, 2007), 36. Axel Gosseries, Penser la justice entre les générations: de l’affaire Perruche a la réforme des retraites (Paris: Aubier, 2004), 140. On the orientation towards the future of much moral and political philosophy see Cockburn, Other Times: Philosophical Perspectives on Past, Present and Future, 25.

Jeffrey M. Blustein, The Moral Demands of Memory (Cambridge: Cambridge Univer- sity Press, 2008), 219-20; Gosseries, Penser la justice entre les générations, 111-14.

Axel Honneth, “Entmichtigungen der Realitat,” in Das Ich in Wir. Studien zur Anerkennungstheorie (Frankfurt am Main: Suhrkamp, 2010), 298. Honneth, “Entmichtigungen der Realitit,’ 299-300.

On the ethics of how we treat human remains see D. Gareth Jones, Speaking for

the Dead: Cadavers in Biology and Medicine (Aldershot: Ashgate, 2000), 13-14, 86-7, 106f Michael Rosen, Dignity: Its History and Meaning (Cambridge, MA: Harvard

University Press, 2012), 128ff. Maylis de Kerangal’s powerful literary treatment of a

family’s struggle to decide if their dead son’s heart should be donated for a transplant

is a reminder that our relationship to that person continues to shape our treatment of his remains. The novel's title, To Repair the Living, expresses Kerangal’s sense of this

drama, which nevertheless tells us that the absent dead remain in a way present, shar- ing a moral community with the living. We feel an obligation to care for them, even

if we give greater weight to present and future persons. Maylis de Kerangal, Réparer

les vivants (Paris: Folio, 2015).

For further analysis of why (and how) we keep the dead in our midst see Schlégel, Im Raum lesen wir die Zeit, 437; Jean-Didier Urbain, L’archipel des morts (Paris: Payot

et Rivages, 1998); Robert Pogue Harrison, The Dominion of the Dead (Chicago:

University of Chicago Press, 2003). See also Barbara Bronnen’s reflections in Barbara

Bronnen, Friedhdfe (Munich: DTV, 1997).

. Avishai Margalit, Ethik der Erinnerung (Max Horkheimer Vorlesungen) (Frankfurt am Main: Fischer, 2002), 46-9; Leon Wieseltier, Kaddish (New York: Vintage, 1998);

Edward S. Casey, Remembering, Second Edition (Bloomington: Indiana University

Press, 2000), 256; Catechism of the Catholic Church, Second Edition (Vatican City:

Libreria Editrice Vaticana, 1997), 249-50.

. Macé, La mémoire aime chasser dans le noir, 25. On the family, its home and the dead

see also Schlégel, Im Raum lesen wir die Zeit, 381. . Max Pensky, “Solidarity with the Past and the Work of Translation: Reflections on

Memory Politics and the Postsecular,’ in Habermas and Religion, ed. Craig Calhoun,

Eduardo Mendieta and Jonathan VanAntwerpen (Cambridge: Polity Press, 2013), 3008. . Jiirgen Habermas, “Warum ein ‘Demokratiepreis’ fiir Daniel J. Goldhagen? Eine Lau-

datio,’ Die Zeit, March 14, 1997, April 18, 2019 <www.zeit.de/1997/12/historie.

txt.19970314.xml>. See also Jiirgen Habermas, “Uber den éffentlichen Gebrauch der Historie,” in Die postnationale Konstellation, ed. Jirgen Habermas (Frankfurt am Main: Subrkamp, 1998), 49; Jiirgen Habermas, “Historical Consciousness and Post-

Traditional Identity,” translated by Shierry Weber Nicholsen, in The New Conserva-

tism (Cambridge, MA: MIT Press, 1989), 251; Jiirgen Habermas, “Burdens of the

Double Past,” translated by Sidney Rosenfeld and Stella P. Rosenfeld, Dissent (Fall

1994): 514~15; Jean-Marc Ferry, “Interview with Jiirgen Habermas,” translated by Stephen K. White, Philosophy & Social Criticism 14, no. 3/4 (1988): 438.

. Karl Schlégel, Terror und Tiaum. Moskau 1937 (Munich: Carl Hanser, 2008), 18;

Siegfried Lenz, Uber das Geddchtnis, Reden und Aufsitze (Munich: DTV, 1992), 10. . Relatedly see Henri-Pierre Jeudy, Conte de la mére morte (Bruxelles: La lettre volée,

1997), 80. . “The dead are honored with tears that flow only for the living.” Francois La Roche- foucauld, Réflexions ou Sentences et Maximes morales (Paris: Librairie Générale Fran-

caise, 1991), 118. So for example, epitaphs and memorials which appear to insert a

88

27. 28.

29.

30.

31.

33.

34,

. Thomas Nagel, “Death,” Nods 4, no. 1 (February 1970): 76; Harry S. Silverstein,

36.

37. 38.

39, 40.

41.

Is the past a foreign country?

vanished past into the present in fact express the vantage point of the living not the

dead. Anne Carson, Economy of the Unlost: Reading Simonides of Keos with Paul Celan (Princeton: Princeton University Press, 1999), 73; Dieter Henrich, “Tod in Flan-

dern und in Stein,” in Konzepte. Essays zur Philosophie in der Zeit (Frankfurt am Main:

Suhrkamp, 1987), 97. See also Louis-Vincent Thomas, Rites de mort. Pour la paix des

vivants (Paris: Fayard, 1985).

Gosseries, Perser la justice entre les générations, 118. For further discussion of this see Francois Hartog, Evidence de Vhistoire. Ce que voient

les historiens (Paris: Gallimard, 2005), 260; Meyer, Historische Gerechtigkeit, 79-80;

Emmanuel Kattan, Penser le devoir de mémoire (Paris: Presses Universitaires de France,

2002), 13, 18; Blustein, The Moral Demands of Memory, 238; Pensky, “Solidarity with the Past and the Work of Translation.”

See Gosseries, Penser la justice entre les générations, 131.

Eve Bertelsen, “Ads and Amnesia: Black Advertising in the New South Africa,” in

Negotiating the Past: The Making of Memory in South Africa, ed. Carli Coetzee and

Sarah Nutall (Oxford: Oxford University Press, 1998), 226. On group harms of this latter kind see Ori J. Herstein, “Historic Injustice, Group

Membership and Harm to Individuals: Defending Claims for Historic Justice from

the Non-Identity Problem,” Harvard BlackLetter Law Journal 25 (March 3, 2009):

230-76. . For a critique of the idea of lessons from the past see Thomas W. Pogge, “Historical

Wrongs: The Other Two Domains,” in Justice in Time: Responding to Historical Injus-

tice, ed. Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesellschaft, 2004), 117-34;

Pablo de Greiff, Manuscript, “The Duty to Remember: The Dead Weight of the

Past, or the Weight of the Dead of the Past?,” in Redeeming the Claims of Justice in Transitions to Democracy (IN.D.), 5-7.

See for example Arieh Neier, José Zalaquett and Adam Michnik, “Why Deal with

the Past?,” in Dealing with the Past: Truth and Reconciliation in South Africa, ed. Alex

Boraine, Janet Levy and Ronel Scheffer (Cape Town: Institute for a Democratic Alternative for South Africa (IDASA), 1997), 3.

Meyer, Historische Gerechtigkeit, 85.

“The Evil of Death,” Journal of Philosophy 77, no. 7 July 1980): 401-2.

Nagel, “Death,” 78; Gosseries, Penser la justice entre les générations, 123; Rahul Kumar,

“Wronging Future People: A Contractualist Proposal,” in Intergenerational Justice, ed.

Axel Gosseries and Lukas H. Meyer (Oxford: Oxford University Press, 2009), 252

note 2.

See Meyer, Historische Gerechtigkeit, 81.

Meyer, Historische Gerechtigkeit, 76, 81, 386~7; Axel Gosseries, “Three Models of

Intergenerational Reciprocity,’ in Intergenerational Justice, ed. Axel Gosseries and Lukas H. Meyer (Oxford: Oxford University Press, 2009), 132; Gosseries, Penser la

justice entre les générations, 123.

Pensky, “Solidarity with the Past and the Work of Translation,” 309-10.

Don Herzog calls this view the “hangover thesis” and describes it as “the claim that our lingering regard for the dead is best regarded as a remnant of our religious

beliefs” He adds that the “hangover thesis depends on the view that all that mat-

ters is conscious experience.” Don Herzog, Defanting the Dead (New Haven: Yale University Press, 2017), 244, and p. 2. See also Lukas H. Meyer, “Surviving Duties

and Symbolic Compensation,” in Justice in Time: Responding to Historical Injustice, ed. Lukas H. Meyer (Baden-Baden: Nomos Verlagsgeselschaft, 2004), 173; Meyer, His-

torische Gerechtigkeit, 79.

Apart, that is, from a prospective status as a member of the relevant community. That will turn out to be an important element in our obligations to them.

42.

43.

44,

45.

46.

47.

48.

49,

50. . Feinberg, Harm to Others, 85, 89; Gosseries, Penser la justice entre les générations, 124.

52,

53.

54.

55.

56.

57. 58.

59. . Meyer, Historische Gerechtigkeit, 105 and see also 100-1.

61.

63.

64.

65.

66.

67.

isthe past aforeign country? 89

Theunissen, “Die Gegenwart des Todes im Leben,”'118: Robert Spaemanin, Per- sonen. Versuche iiber den Unterschied zwischen ‘etwas’ und: Jemand’ (Stuttgart: Klect- Cotta, 2006), 123.

Gosseries, “Three Models of Intergenerational Reciprocity,’ 132. For a related analy-

sis of past and future obligations see Annette Baier, “The Rights-of Past and Future

Persons,” in Responsibilities to Future Generations: Environmental Ethics, ed: Ernest Par= tridge (Buffalo, NY: Prometheus Books, 1981), 171-83.

George Pitcher, “The Misfortunes of the Dead,” American Philosophical Quarterly 21, no. 2 (April 1984): 185; Meyer, Historische Gerechtigkeit, 78.

The phrase is froni Christine M. Korsgaard, “Personal Identity and the Unity of Agency: A Kantian Response to Parfit,’ Philosophy & Public Affairs 18, no. 2 (Spring

1989): 131. Hume, A Treatise of Human Nature, 252 Emphasis in the original. Ernest Partridge, “Posthumous Interests and Posthumous Respect,” Ethics 91, no, 2

(January 1981): 244, 248; Meyer, Historische Gerechtigkeit, 117-18; Meyer, “Surviv- ing Duties and Symbolic Compensation,” 174; Joan C. Callahan, “On Harming the

Dead,” Ethics 97 January 1987): 347, 349. Gaboriau writes that it is a hallmark of the complete disappearance of the dead that they can never answer a question from the living. Gaboriau, La présence et absence, 50.

Joel Feinberg, The Moral Limits of the Criminal Law, vol. 1, Harm to Others (Oxford: Oxford University Press, 1984), 95. Feinberg, Harm to Others, 83, 87-8.

Barbara Baum Levenbook, “Harming the Dead, Once again,” Ethics 96 (October December 1985): 162; Pitcher, “The Misfortunes of the Dead,” 184; Feinberg, Harm

to Others, 91. This argument has been the object of a variety of critiques, focused particularly on

ideas of subject-less interests and of injury done to now dead but once living persons.

See Callahan, “On Harming the Dead,” 344; Gosseries, Penser la justice entre les généra-

tions, 126-30; Meyer, Historische Gerechtigkeit, 84—9. Meyer, Historische Gerechtigkeit, 80, 123; Meyer, “Surviving Duties and Symbolic

Compensation.” Meyer, Historische Gerechtigkeit, 99. Lukas H. Meyer, “Einleitung,” in Justice in Time: Responding to Historical Injustice, ed.

Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesellschaft, 2004), 14; Meyer, Histo-

rische Gerechtigkeit, 77, 92.

Meyer, Historische Gerechtigkeit, 75. Meyer, Historische Gerechtigkeit, 44; Baier, “The Rights of Past and Future Persons,”

172. Meyer, Historische Gerechtigkeit, 76, 91-2, 94, 100.

Meyer, Historische Gerechtigkeit, 101, 105. On relational and real changes see also

Peter Geach, God and the Soul (New York: Schocken, 1969), 71-2, 99. . Stuart Hampshire, Innocence and Experience (Cambridge, MA: Harvard University

Press, 1989), 147.

Nagel, “Death,” 78.

Meyer, Historische Gerechtigkeit, 84-5, 121; Nagel, “Death,” 78; Gosseries, Penser la

justice entre les générations, 122.

Gosseries, Penser la justice entre les générations, 123.

Gosseries, Penser la justice entre les générations, 123-5; Meyer, “Surviving Duties and

Symbolic Compensation,” 182. Aristotle, The Nicomachean Ethics, translated by Harris Rackham, Loeb Classical

Library (Cambridge, MA: William Heinemann, 1932), 1100a10-31.

90

68.

69.

70.

71, 72.

73.

74,

75.

76,

77,

78. . See Kant, Critique of Pure Reason, 467, 472 [A538/B566, A546-547/B574-575];

80.

81.

83.

84.

Is the past a foreign country?

Immanuel Kant, The Metaphysics of Morals, edited and translated by Mary Gregor

(Cambridge: Cambridge University Press, 1996), 76-7; Immanuel Kant, Kants Werke: Akademie-Textausgabe (Preussischen Akademie der Wissenschaften Ausgabe), vol. 6,

Die Metaphysik der Sitten (Berlin: Walter de Gruyter, 1968), 295-6. Kant, The Metaphysics of Morals, 76 note; Kant, Die Metaphysik der Sitten, 296 note. Kant, The Metaphysics of Morals, 76; Kant, Die Metaphysik der Sitten, 295.

Kant, The Metaphysics of Morals, 77; Kant, Die Metaphysik der Sitten, 296. Immanuel Kant, Groundwork of the Metapltysic of Morals, translated by HJ. Paton (New

York: Harper Torchbooks, 1964), 102; Immanuel Kant, Kanis Werke: Akademie-

Textausgabe, vol. 4, Grundlegung zur Metaphysic der Sitten (Berlin: Walter de Gruyter,

1968), 434. See Kant, Groundwork of the Metaphysic of Morals, 100ff Kant, Grundlegung zur Meta-

physic der Sitten, 433ff. For a Kantian critical appraisal of Rawls’s closed community see Onora O’Neill,

“Political Liberalism and Public Reason: A Critical Notice of John Rawls, Political

Liberalism,’ Philosophical Review 106, no. 3 July 1997): 422-8. I am grateful to Cillian

McBride (Queen’s University, Belfast) for discussion of this point. Immanuel Kant, Critique of Pure Reason, translated by Norman Kemp Smith (New

York: St. Martin’s Press, 1970), 264fF, 4098 [A246 A444f/B304f, B472ff |. Kant, Critique of Pure Reason, 272 [A255/B311). Indeed, Kant himself famously stated that freedom and the noumenal generally

were unknowable, a remainder left to be defended, after we abstract from all that is given in experience. See Kant, Critique of Pure Reason, 472 [A545-546/B573-574];

Immanuel Kant, Critique of Practical Reason, translated by Lewis White Beck (India-

napolis: Library of Liberal Arts, 1956), 43; Kant, Groundwork of the Metaphysic of Mor-

als, 130-1; Kant, Grundlegung zur Metaphysic der Sitten, 462-3.

Honneth, “Entmichtigungen der Realitat.”

Kant, Groundwork of the Metaphysic of Morals, 118-19; Kant, Grundlegung zur Meta-

physic der Sitten, 450-1; Kant, Critique of Practical Reason, 118ff, 166; Immanuel Kant,

Kants Werke: Akademie-Textausgabe, vol. 5, Kritik der praktischen Vernunft (Berlin: Wal-

ter de Gruyter, 1968), 114, 161-2.

Kant, The Metaphysics of Morals, 76; Kant, Die Metaphysik der Sitten, 295. The universality of these norms means that they are neither temporally nor spatially delimited but rather extend to the living and the dead, and to those beyond our

borders as well as to fellow citizens. See Kant, Groundwork of the Metaphysic of Morals,

103; Kant, Grundlegung zur Metaphysic der Sitten, 436. . See Certeau, “Histoire et structure,’ 168; Certeau, “Histoire et mystique,” 72~4;

Dosse, Paul Ricoeur, Michel de Certeau. I’ Histoire: entre le dire et le faire, 30. Hume, A Treatise of Human Nature, 437. And for commentary see Baier, “The Rights

of Past and Future Persons.” We noted earlier Rawl’s use of the family as providing a motivational assumption for

concern for future generations. We also remarked on the near complete absence of past generations in his account. Burke’s use of family is not oriented to supplying a

missing motivation but rather to sketching a theory of intergenerational justice.

. Edmund Burke, Select Works of Edmund Burke, ed. Francis Canavan, vol. 2, Reflec-

tions on the Revolution in France, A New Imprint of the Payne Edition (Indianapolis:

Liberty Fund, 1999), 191. Burke, Reflections on the Revolution in France, 191, 193,

. Burke, Reflections on the Revolution in France, 122.

. Burke, Reflections on the Revolution in France, 121.

Burke, Reflections on the Revolution in France, 110. . Burke, Reflections on the Revolution in France, 122; Avner De-Shalit, Why Posterity Mat-

ters: Environmental Policies and Future Generations (New York: Routledge, 1995), 31, 34.

91,

92.

93.

99.

100.

101.

102. 103.

104.

105.

106.

Is the past'a foreign’ country?” 91

See relatedly De-Shalit, Why Posterity Matters: Environmental Policies and Future Gen- erations, 14; Doris Schroeder and Bob Brecher, “Transgenerational Obligations: ‘Twenty-First Century Germany and the Holocaust,” Journal of Applied Philosophy 20, no, 1 (2003): 51; Janna Thompson, “Identity and Obligation in a Transgenerational Polity,” in Intergenerational Justice, ed. Axel Gosseries and Lukas H. Meyer (Oxford: Oxford University Press, 2009), 25, 28-9; Meyer, Historische Gerechtigkeit, 10, 194;

Jeremy Waldron, “When Justice Replaces Affection: The Need for Rights,” Harvard Journal of Law and Public Policy 11, no. 3 (Summer 1988): 630; Baier, “The Rights of Past and Future Persons,” 173, 177.

See Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap, 1986), 166.

Consider the very different conceptions of ethics and political justice that emerge from for example Derek Parfit’s work loosening the ties of a person (to her earlier

or later selves) or those of'a society across time. See Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984), 191, 211, 215-17, 239, 241, 275, 445;

Derek Parfit, “Later Selves and Moral Principles,” in Philosophy and Personal Relations, ed. Alan Montefiore (Montréal: McGill-Queen’s Press, 1973), 137-9, 141-2, 151; Derek Parfit, “Future Generations: Further Problems,” Philosophy & Public Affairs 11, no. 2 (Spring 1982): 113-72.

. Dworkin, Law’s Empire, 166-7.

. Dworkin, Law’s Empire, 171.

. Dworkin, Law’s Empire, 172-3.

. Meyer, Historische Gerechtigkeit, 160-2, 243.

. Friedrich Nietzsche, “Twilight of the Idols,” in The Portable Nietzsche, ed. and trans.

Walter Kaufmann (New York: Penguin, 1954), 543; Friedrich Nietzsche, The Will

to Power, translated by Walter Kaufmann and RJ. Hollingdale (New York: Vintage,

1968), 43. Meyer, Historische Gerechtigkeit, 187, 198.

Aristotle, The Politics, translated by Harris Rackham, Loeb Classical Library (Cam- bridge, MA: William Heinemann, 1932), 1253a16ff.

Thomas Paine, “The Rights of Man,” in Thomas Paine: Collected Writings, ed. Eric

Foner (New York: The Library of America, 1995), 438-9 Emphasis added.

Paine, “The Rights of Man,” 439.

See relatedly De-Shalit, Why Posterity Matters: Environmental Policies and Future Gen-

erations, 14~16.

Nietzsche, Tivilight of the Idols, 543; Nietzsche, The Will to Power, 43. See also Hei-

degger’s discussion of Nietzsche on this issue in Martin Heidegger, What Is Called

Thinking?, translated by Fred D. Wieck and J. Glenn Gray (New York: Harper and Row, 1968), 67. Helpful too are Meyer, Historische Gerechtigkeit, 137, 145, 229,

231; Thompson, “Identity and Obligation in a Transgenerational Polity,” 38; Janna

Thompson, “Inherited Obligations and Generational Continuity,’ Canadian Journal

of Philosophy 29, no. 4 (December 1999): 494, 507; Alasdair MacIntyre, After Virtue

(Notre Dame: University of Notre Dame Press, 1984), 220. George P. Fletcher, “The Storrs Lectures: Liberals and Romantics at War: The Prob-

lem of Collective Guilt,” Yale Law Journal 111, no. 7 (May 2002): 1544.

Chandran Kukathas, “Responsibility for Past Injustice: How to Shift the Burden,”

Politics, Philosophy & Economics 2, no. 2 (2003): 176ff Meyer, Historische Gerechtigkeit, 135; Danielle Celermajer, The Sins of the Nation and the Ritual of Apologies (Cam-

bridge: Cambridge University Press, 2009), 1-4; Neil J. Sewell-Rutter, Guilt by

Descent: Moral Inheritance and Decision Making in Greek Tragedy (Oxford: Oxford Uni- versity Press, 2007), 17; Hywel D. Lewis, “The Non-Moral Notion of Collective

Responsibility,’ in Individual and Collective Responsibility, ed. Peter A. French (Roch-

ester, VT: Schenkman Books, 1998), 167; Joel Feinberg, “Collective Responsibil-

ity?’ in Individual and Collective Responsibility, ed. Peter A. French (Rochester, VT:

Schenkman Books, 1998), 59.

92 Is the past a foreign country?

107. See Peter A. French, Responsibility Matters (Lawrence: University of Kansas Press,

1992), 138-40. 108. David Lowenthal, “On Arraigning Ancestors: A Critique of Historical Contrition,”

North Carolina Law Review 87 (2008-2009): 946.

109. See Dworkin, Law’s Empire, 168, 170-1; Kukathas, “Responsibility for Past Injustice:

How to Shift the Burden,” 167, 181ff Schroeder and Brecher, ‘““Transgenerational

Obligations,” 52; Thompson, “Identity and Obligation in a Transgenerational Polity,”

25. For an historical treatment of institutional continuity and community see Yan

Thomas, ‘Linstitution civile de la cité)’ Le Débat 74 (March-April 1993): 23-44; Ruti G. Teitel, “Transitional Historical Justice;’ in Justice in Time: Responding to Histori-

cal Injustice, ed. Lukas H. Meyer (Baden-Baden: Nomos Verlagsgesellschaft, 2004), 62.

110. Dworkin, Law’s Empire, 172-3; Duncan Ivison, “Political Community and Historical

Injustice?’ Australasian Journal of Philosophy 78, no. 3 (2000): 365.

111. See Jeff Spinner-Halev, “From Historical to Enduring Injustice,” Political Theory 35,

no. 5 (October 2007): 587.

112, Dworkin, Law’s Empire, 166.

113. See Peter A. French, “The Responsibility of Monsters and Their Makers,” in Indi- vidual and Collective Responsibility, ed. Peter A. French (Rochester, VT: Schenkman

Books, 1998), 4; Peter A. French, Collective and Corporate Responsibility (New York:

Columbia University Press, 1984), 13: French 1992: 138-40.

114. Aristotle, The Politics, 1276A18~20.

115. “We have given to our frame of polity the image of a relation in blood.” Burke,

Reflections on the Revolution in France, 122. Burke plainly means “relation in blood” as

a metaphor, suggesting that it is not by artifice or an exercise of the will but by the

long duration of habits of the heart, affective ties and prejudice.

116. See Meyer, Historische Gerechtigkeit, 386.

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3 DOING JUSTICE TO THE DEAD

In the preceding chapter, I was concerned to make a case for a shared commu-

nity of justice, embracing not only the present and living but past {and future)

persons as well. Those present members of the political community are the

(limited) owners of the actions of past generations and stand in a relationship

of responsibility to future generations. In that very broad sense, living par-

ticipants in the political community always find themselves (in Hume’s words,

quoted earlier) “in a kind of middle station betwixt the past and future ... our

ancestors .. . and our posterity.” A shared community across time: sometimes

fragmented, disrupted, and always subject to change. These relations with past

and future generations lack a number of characteristics that belong to contem-

poraries alone, e.g., reciprocity.! Yet in other respects that community is not

composed of detached island-like entities (indeed if it were, it would not be a

community at all) but is rather the moral archipelago of a shared community.

In the pages that follow, I build on a claim adumbrated in Chapter Two: that

belonging to this union of the dead, living, and yet-to-be-born persons saves

the “lost ones” from a final and complete destruction of their standing as sub-

jects of justice.

I begin with two brief examples. The French writer, Camille Laurens, titled

her powerful account of death and loss Cet absent-la, conveying the sense of

absence, yet of someone still there in a way and not a mere handful of dust.

And not just a presence, but one which demands to be noticed, to be recog-

nized. The family’s dead and its living members, on that view, share a porous

boundary, and are sustained and kept present in their ongoing relationship by

the love of the enduring familial community.*4 That relationship of love, Lau-

rens writes, “is the exception to nothingness” [the nothingness of death and

absence] because it “makes [the absent] visible.”> Recognizing the absent, and

98 Doing justice to the dead

in that sense making them visible, is possible because of the community we

share with them across time, a community that includes obligations to our

(here our familial) dead. Something similar, we might speculate, holds in the

case of historic injustice and the relations of justice that call on us to act in

response to the victims of those injustices. Like Laurens’ more intimate illus-

trations of love, death and family, those victims retain a presence, a standing in

relation now to a community and its (in Lévinas’ phrase) “concern for justice,”

from which emerges the imperative to recognize them.

In 2003, philosopher Peter Singer published a biography of his grandfa-

ther, David Oppenheim, who was murdered in the Holocaust. His book, Push-

ing Time Away. My Grandfather and the Tragedy of Jewish Vienna, takes its title,

“pushing time away,” from a 1905 letter by David Oppenheim to his future

wife. It reads in part: “What binds us, pushes time away.” The ties of familial

life, stretching across generations, keep the dead present. Singer writes that he

cannot “entirely dismiss the feeling that by allowing David's writing to reach

across the years to me, I am doing something for him.”? What he is doing for

his grandfather is pushing time away in order “to undo, in some infinitely small

but still quite palpable way, a wrong done by the Holocaust . . . mitigating,

however slightly, the wrong that the Nazis did to him.”* The bonds of familial

attachment (“Because he was my grandfather?”)° are here intertwined with

those of justice (“mitigating . .. the wrong”).

This suggests that the binding ties of community push time away by keeping

the absent close to the living. If we are to understand that possibility, we need

to find a language to express the standing of the absent dead, a vocabulary to

justify the intuition that the fact of distance fundamentally transforms but does

not abolish entirely the reality of the wronged person, or of our duty (we who

share a community of justice with him) to acknowledge him and to answer the

injustice done him, to “reckon the lost ones into the account.” In the pages that

follow, I again turn for assistance to classical tragedy, first for its reflections on

time and absence, then for its presentation of death and justice.

Absence and re-presented presence, recognition and invisibility, staining and

pollution: this cluster of concepts has a thematic core that is helpful for think-

ing about the standing of the dead. What it invites us to consider is the thought

that communities, familial or political, endure as something shared across time:

moral principles, norms of justice, affectional ties and the many other bonds

of community. The persistence of this shared world grants a certain presence

to the past, making its actions ours as well, its greatness and great wrongs ours

too. The community’s past and future are parts of its being an intergenera-

tional “we.” Rawls’s simplifying assumption that we “enter a society only by

birth and leave it only by death”!° is thus not quite accurate. Future, not-yet-

born persons, are already here, in the present, as we think about (for example)

the environment, deficits, and leaving them a better society than the one we

entered. By the same token, we do not entirely exit with our deaths. Rather,

Doing justice to the dead 99

our actions, what we did and failed to do, become part of the autobiography

of the community and sometimes a demanding moral presence. The dead and the future members of our community are not impossibly remote from us, the

living, but are rather absent members of an intergenerational archipelago. In “reckoning .. . [them]... into the account,” the living acknowledge a certain

kind of presence despite their distance.

Classical tragedy is a rich guide to questions about the role of the dead and

the past in a community’s life. For it is often concerned with absence, and absence defines our relationship to the past, as it also and relatedly shapes the

otherness of our relationship to the dead, those denizens of a seemingly sealed

well. The dead, we said, are the absent par excellence, and tragedy raises the

question of acting on the injustice done them given their radical absence." It

yields a distinctive set of issues, among which is the question of how the dead

can be given their measure of justice, seemingly separated as they are from the living by their non-being, by their standing (in Aeschylus’s phrase) as the “lost

ones.” !? Consider this passage from the Libation-Bearers: “Justice with her scales

watches over them, against some acting swiftly in the daylight, while other

things wait, to burgeon after long delay in the no-man’s-land between light

and darkness, and others again are held in pitch-black night.”'5 Here we see

the range of justice’s reach: from those immediately present to others held in

“pitch-black night.” In this image of justice’s reach, the dead stand at its outer limit, in “pitch black.” Hence Orestes’ question to his dead father: “What thing

can I say, what canI do... from afar... to where your resting-place confines

you?” 4 How, in this far place of the present and living, can he bring justice to

the murdered Agamemnon?!» That cluster of questions makes Aeschylus’s Oresteia, and its painstaking

engagement with questions of justice, particularly valuable. The Ovesteia, it

will be recalled, recounts the story of Orestes, son of the murdered Agamem-

non who, together with his sister Electra, avenges him by slaying his killer

and their mother, Clytaemestra. Subsequently, Orestes is pursued by the dead

Clytaemestra’s Furies (Erinyes) who seek vengeance on her behalf for his act

of matricide.!® The cycle concludes with Orestes’s trial and acquittal and the

displacement (on one standard reading) of the Furies (and Clytaemestra, whom

they represent) and their vengeful, violent, and private justice by the delibera-

tive, institutionalized, justice of the city.” That reading holds that the final

drama, the Eumenides, has as its central motif the setting out of the claims of

public justice as opposed to the barbaric world of the Furies and private, famil-

ial revenge.'® The importance of the Oresteia for the arguments developed here

includes that (contested) achievement, but is wider in a number of important

respects. Here in outline form are three of those additional avenues. (1) Perhaps

the most striking of these is the centrality of the dead, and their sometimes

manifest physical presence on the stage, together with that of their helpers, the

Erinyes. The Oresteia revolves around our varied relationships to the dead, and

700 Doing justice to the dead

in particular the community of justice we share with them. Even in its conclud-

ing scene, a future-oriented moment celebrating the creation of a public court

for homicide trials, the dead and their advocates are close by.’” Indeed their (the Furies’ and Clytaemestra’s) presence on the Eumenides’ stage points to the aboli-

tion of the distance between the living and the dead.”° When we speak of the abolition of that distance, we mean that the concern

for justice in an enduring political community or the familial bonds that Singer

and Laurens remark on bring us to care for the dead, to recognize them as

present in the bonds we share with them. Recall Electra’s question: would it be

honorable not to care for the dead? Héléne Cixous describes Aeschylus as the

“care-taker of the dead,” keeping them at once living and dead.?! What does it mean to care for the dead as part of an ongoing relationship of justice with

them? Aeschylus himself, in an attributed and incomplete fragment, raises this

issue directly: “And if you want to do good to the dead or again to do them harm, it makes no difference; for <the lot of> mortals <when they die is to

have no sensation> and feel neither pleasure nor pain.” In Agamemnon, the

herald, after recounting the travails of the expedition to Troy, asks “but why

should we mourn over these things? The suffering is past! For the dead, it is so

thoroughly past that they don’t even have to worry about reveille any more... .

Why should we reckon the lost ones into the account?”*? Reckoning the “lost ones”: the dead may be without the capacity to feel pleasure or pain, but in

that same Aeschylean fragment just quoted, he writes of justice that it “exacts

the penalty for the wrath of the dead.”?4 The dead do not have sensation but they demand an answer for their unjust fate, and call for avengers to exact that

revenge on their behalf. Of course to say they “demand” is a manner of speak-

ing, since the dead are as mute as they are invisible. The “demanding” here

is a function of their being embedded in a community and its particular ties,

and having suffered a grave injustice. Recognition of that, facilitated by living

avengers, gives rise to a demand for a response.

We heard Orestes, in the Libation-Bearers, asking his murdered father,

“Father, what can I say, what can I do, that I can send successfully . . . from afar

to where your resting-place confines you?”*> The Chorus responds to Orestes, saying that “the spirit of the dead is not subdued . . . and in the end he makes

his anger manifest. He who dies is bewailed—he who can harm is made to

appear.” Distance (Orestes’ phrase: “from afar”) is a defining characteristic of the dead, as is the darkness in which they reside, seemingly impenetrable to

the living. But central also, Aeschylus tells us, is their demand to be avenged,

that (in Cassandra’s words) “we shall not, in death, remain unavenged by the

gods.”?? These demands for justice, made to the living and the gods, and against

the countervailing forces of distance, forgetting, and invisibility, suggest a view

of the dead as continuing subjects of justice, claimants on justice in the here and

now. The presence on stage and among the living of Clytaemestra’s ghost and of the Erinyes (in the Eumenides) suggests this understanding. Yet at the same

time, Orestes’ words at his father’s grave, and those of the herald in Agamemnon

Doing justice to the dead 101

(quoted just earlier) testify to the instability and uncertainty of the relationship between the living and the dead.

(2) The Oresteia raises a second cluster of issues arising out of the detnand to do justice to the dead. The overarching challenge here is that in acknowledging

the presence and (limited) standing of the dead, and hence their demands that

justice be done, they are given a certain power over the living, to pollute or

stain persons and cities in the absence of an adequate response to the injustice

inflicted upon them,” the power to insist on their defining passion, vengeance,

and their ability to shadow or color the present with their ancient grievances.

Their hold on the living is especially ruinous in this sense: that it is oriented

retrospectively, and aimed at vengeance as the correction of the victim’s bro-

kenness, or of the crime-created inequality between her and her tormentor.”? In the extension of time, the dead have a past, and so their care-takers in the

present must constantly return to that “sealed well.’°° Here once more is David Grossman, addressing his dead son: “But your vocabulary, my son—I sense

it—diminishes as the years go by. Or at least does not evolve: soccer, steak,

homework, pebbles . . . small moments to which you turn, return.”*! To care

for the dead, it would seem, is therefore to care for the past alone.** And to be

concerned for vengeance for dead victims of injustice is to be drawn towards

that sealed well, something that threatens to undermine present and future

goods. “The dead are killing the living.”*? Consider, as an illustration of this, the following passage from Agamemnon: “if he [Agamemnon] pays for the blood

shed by his forefathers and by dying causes the dead to exact further deaths as

a penalty, what mortal, hearing this, can boast that he was born to a destiny

free from harm?”** These few lines, Sommerstein points out, chart three gen-

erations of vengeful bloodshed.* In each generation, it is “the dead . . . [who] exact further deaths as a penalty.” Recognizing the absent-presence of the dead

among us sets the foundation for their status as claimants on justice. Yet it also

means that their lack of a stake in the world of the living, apart from recogni-

tion of their standing and the securing of justice as revenge, can clash with the

goods of the present and future, bringing “further ruin upon ruin.”*° (3) A third set of issues arises out of the presence of the dead as subjects of

and claimants on justice and the way in which that makes doing justice a mat-

ter between the victim, her family, and her tormenter, a balancing of their

account in which the political community figures as little more than a proxy, the efficient executor of her desire for revenge. We could cast this as a deriva-

tion from the preceding point, which made the victim’s thirst for vengeance

central to the intergenerational ruin of persons and communities. This third

issue also picks out the centrality of the victim, but looks at its impact on the

institutionalized doing of justice. Here the thought is that the embedding of justice in the city’s institutions makes justice primarily a public matter, carried

out by, and in the interests of, the political community in a rational, delibera-

tive and fair manner, The victim and her family are displaced in this view from

the center of justice. The Eumenides in particular raises this question of whether

102 Doing justice to the dead

the injuries, the work of answering them and the purpose of doing so belong

primarily to the victim or to the community. Is the work of justice at its core

directed to the preservation of a law-governed order (and its attendant goods) against the damage done by crime to that order? Or are the crime and response

to it better understood as belonging to the victim, hers as a wronged subject of justice, to be answered through private vengeance or a criminal justice system?

The struggle to restore the absent victim of past injustice to presence and rec-

ognition would seem to make her loss and whatever repair of it is possible the

defining heart of justice. Yet the interests not only of present and future persons but of the political community itself risk being displaced by the demands of the

victim and his advocates. In the pages that follow, I explore these issues.

First though a few exegetical notes. Interpreting the Oresteia is made par-

ticularly challenging by the multiple tensions that shape its dramatic action:

ancient and new conceptions of justice, the old and new gods, gender, and

the mesh of revenge killings in which justice is arrayed against justice, with

some justice on all sides but no truly clean hands.*’ In that kaleidoscope of

thematic material, my primary concern will be with the trilogy’s attention to

absence: the confrontation between Clytaemestra’s eidnlon, her image/shadow,

the Furies representing her, her son and killer Orestes, and the city’s justice.

If doing justice to the absent dead is central to the drama of the Oresteia, the relationship between the Athenian audience and the play offers another facet of

that same engagement, now shaped by historic distance. In the Eumenides, past,

present and future are brought together on the stage.*® The play does this by setting out the remote origins of the Athenian homicide court, the Areopagus,

and some have speculated that this convergence of time past, present and future

would have been dramatized on the ancient stage by the audience participat-

ing in the procession of the final scene.* In this play, the Athenian audience witnessed the acquittal of a killer as the original act of their Areopagus. How

did they respond to this theatrical portrait of their past? Did they applaud the

use of rhetoric, even sophistry, in securing that outcome, and see themselves as

unsullied by those origins? Did the audience see the consigning of the Furies’

justice to the underground as a victory for the city or (as some have suggested)

as a corruption at the root of their democratic institutions, a perjury and rejec~

tion of the voice of justice? How they understood the killing of Clytaemestra

and the acquittal of Orestes is something lost to us. It is nevertheless possible to see that ambiguity itself as pointing to one of the ways in which the dialectic of

distance and presence shapes how we think about justice.

The Presence of the Dead

So now let us return to the Oresteia’s understanding of the presence of the

dead. Clytaemestra’s status as an absent-presence, a dead claimant on justice,

and its attendant difficulties, make her an exemplar of the class of dead victims

Doing justice to the dead _ 103

of injustice. Crucial to the trilogy is the thought, the fear, that the “far place”

of death and absence may indeed put its denizens beyond justice. But its dead are shown resisting that nullification and struggling to retain a presence, in the limited sense that their represented presence demands recognition and justice.

This debt is made known through their helpers, the “care-takers of the dead.”

Agamemnon’s children will not allow their father and the manner of his death to

be exiled to the invisibility and silence of that “far place.” And the Furies will not

permit Clytaemestra’s killer his rest. Their care is for the victims and the injustice

done them, a concern undiminished by the distance of death and passing time.*°

As long as their fate is unacknowledged and the perpetrator not called to account,

their claims remain restless and unrequited. They dwell in, and struggle against,

a kind of absence from justice and from those who share with them a community

of justice.“ “A light to compensate for [your] darkness”? is Aeschylus’s way of

describing this fight to make them visible, that is, to have them acknowledged as

wronged members of a shared community of justice.

Here I use a panel from a classical era (380-360 BCE) Lucanian red-figure

nestoris interpreting the Eumenides® to frame the outlines of the Aeschylean

understanding of the centrality and presence of the dead victim to doing justice

(see Figure 3.1).

FIGURE3.1. Lucanian red-figure nestoris portraying Orestes, Clytaemestra, and the

Furies

Source: Photograph of the Lucanian nestoris reproduced here with the permission of Archivio

dell’arte / Pedicini fotografi

104 Doing justice to the dead

One of the vase’s images makes clear in a particularly striking way the core

theme of justice and the presence-absence of the victim. There we see Orestes

confronted by two Furies. These “helpers of justice” and “upright witnesses” for

the murdered victim hold a mirror reflecting the dead Clytaemestra’s crowned

head, her accusing glance turned directly towards Orestes.** In the Eumen-

ides, Clytaemestra is indirectly present in the form of an image or shadow, an

eidonton;*® on this vase, she is shown as a reflection. But her mirrored image is

not a mere portal or window through which Orestes can see his victim among

the “lost ones” in their “far abode” of pastness and death. On the contrary, it is

her actualization, making her present to confront him in justice and in the here

and now. These two representations show her to be both present and absent:

a presence but not of the ordinary kind, shadow-like, but visible, recognized,

and as such calling her killer to account: an image in a mirror, an absence, yet

not a nullity. “The fact that someone is dead may mean that they are not alive,

but doesn’t mean that they do not exist.’“° The dead, as Nicole Loraux says in

another context, are in a way still among the living.*” Like the picture (men-

tioned earlier) of Kevin McElhinney looking out over the crowd in Derry, the

mirror’s reflected face silently demands recognition of her standing as someone

wronged, and makes her central to doing justice.

Reflections in mirrors convey an obliqueness, the presence of something

not seen directly but represented to us in polished metal or glass. In ancient

Greece, mirrors were a common feature of death cults and suggested a kind of

overcoming of distance in the context of the relationship between the living

and the dead.*8 That overcoming of absence is ambiguous however. Jean-Pierre

Vernant writes that the image of the deceased on the classical Greek grave

marker stood in for the formerly living person. At the same time it gestured to

a new mode of being, different from the old one, that is the status of

being dead that the deceased acquired in disappearing forever from the

light of the sun.”

The mirror portrayed on the Lucanian vase shows Clytaemestra to be there,

a represented image, shadow-like, but demanding a response from the living,

underscoring thereby the two principal motifs of the counterpoint of justice

and absence: her centrality to doing justice and her unstable status as an absent

presence. In this way is expressed a part of the uncertainty of the claims made on her

behalf, and on behalf of absent victims generally. Ifthe victim’s reflection in the mirror points to the ambiguities of her absent presence, the act of holding the

mirror up so that others will see her suggests what it is to do justice. It is to be a

helper of the victim, a “witness for the dead,” the vehicle by which she is made

present, her distance and invisibility overcome by the light of recognition. That act acknowledges her, declaring that from the standpoint of justice, she is not

Doing justice to the dead 105

a nullity. And in acknowledging, in recognizing, her, it offers “light to com- pensate for darkness.” But if she is not mere non-being, what sort of reality,

of real presence, does she possess? Reflected in the Furies’ mirror, she is not

a sentient human being, a “locus of experience.” She is not there in flesh and

blood, nor is she endowed with those attributes that might have characterized

her as a living person. What does survive is her enduring and real presence as a

member of a community: a mother, adulterous wife, lover, and queen. In those

characteristics are grounded her identity and her ties to the living members of

her community, ties of obligation, of hatred, and of mutuality or philia. In that

very general sense, her standing as a subject of justice, shaped and sustained by

her belonging to a community, and the significance of her matricidal death

are her real presence and are undiminished by the “far place” where she now

resides. She appears in the Furies’ mirror, for there in the Furies’ concern for

justice, she has being, and a kind of visibility not in all of the dimensions that were once hers when she was alive, but still as a mother held fast in that long

mesh of her community’s duration, and therefore a claimant on recognition as

a subject of justice.

The Furies and their mirror re-present Clytaemestra to the here and now,

bring killer and victim face to face once more, the victim now not dust and

nothing in her grave, or a corpse in her blood-spattered chamber, but a claim-

ant acting under the auspices of justice. The Furies have a particular affinity

for the unjustly dead (especially those within a family), and in their turn those

absent victims need the representation that these friends of justice offer. Neither personifications of the dead nor justice itself, the Furies nevertheless play a cru-

cial and related role as the “helpers” of both. By giving a presence to the absent

victim, they represent those who otherwise might remain invisible to justice.

In so doing they “suppress the distinction between the space of the dead and

the space of the living.”°° They thus venture a response to a question central to

the Oresteia and to this study: can the dead victims of injustice be recognized as

present and as claimants still on justice, their distance from us somehow (par-

tially) overcome? The Furies answer this with their mirror, by means of which

they make the dead present as subjects and overturn what had appeared the

unbridgeable absence of death.°! The Lucanian vase painter’s interpretation of the Eumenides invites the fol-

lowing observations: (1) through her helpers, the absent victim attains a kind of

presence, demands recognition, and with that justice. (2) This presence is made

known to her community only in an oblique way, in her reflected face. That is, she must be represented, disclosed by the “helpers of justice,” to a present

all too inclined to grant reality and recognition only to the living. (3) The vic-

tim, however fleeting or oblique her presence, is central to doing justice. The

encounter portrayed here is between the victim and perpetrator, and it is her

claims that are advanced against Orestes. (4) The mirror points to her presence

and to the enduring relational dimension she insists on: she is there, wronged,

106 Doing justice to the dead

and demanding justice from the living. The Furies holding the mirror bring

Clytaemestra to her killer and to others in her community. Without the mirror

and the Furies carrying it, she would remain invisible to them, unrecognized

and thus exiled from her community, silent and overshadowed by the present.

She would be, in Héléne Cixous’s words, “the victim who has never spoken” in

the place where justice is done.”

Doing justice is in part the struggle to overcome, to invert, those absences by

showing that what seems nonexistent in fact retains a presence, one demanding

a response. They are recognized as subjects, but with the realization that, in

responding to them, the dead cannot be repatriated whole. Death and the pass-

ing of time make many of the harms done them irreparable. Justice therefore

has great limits to what it can do. Some “evil knows no deliverance,” for as the

Chorus tells Electra “from the all receptive lake of Death you shall not raise

him [Agamemnon].”>* The Oresteia is in part a story of duties to these dead

who, though unreachable in one sense, nevertheless remain present in the light

of justice and who therefore can in a limited manner be further wronged by

the failure to secure whatever justice can be done for them. The victims need

a response because, even though dead, they remain subjects of justice and so

claimants on an answer to them, at least on the recognition of their standing.

Though their presence as such claimants is not a confection of the present, they

themselves are nevertheless powerless to secure the justice that is their due. It

is the living and present that are the agents of this completion of justice. The

Furies’ commitment to representing the victim is then a vital part of doing

justice.>* A failure to do this would be a wrong done to the victim and a tear

in the fabric of justice and of the community that it binds together. When Karl

Schlégel describes the forgetting of the victims of the Stalin dictatorship in the

USSR as their “second death,” we take him on one level to be speaking meta-

phorically: plainly, the dead cannot be restored to life nor therefore can they die

again.®> Yet we also grasp the underlying thought: that such forgetting would

be a wrong, an injustice, not (only) because their living and present descendants

would be hurt, or because lessons for the future might be lost, but primarily

because it would be a failure to respond to (to recognize) the wronged subject

and member of her community, and in that sense it would dissolve altogether

whatever remains of their (relational) presence.

So we return to the question: how are we to understand their enduring

status as persons to whom justice is owed? And what does it mean to represent

the dead as claimants on justice? On one view, as we have seen, they have no

interests, no continuing stake in the world after their death, no further pain or

harm to suffer, and no repair to savor.*° There is thus (on this account) no com-

mon mesh, no enduring relational status between us and them: in death, they

are outside the justice of their former community. They are “the lost,” denizens

of a “foreign country,” or even “perfect non-entities.” And thus the challenge:

what need is there then to “reckon the lost ones” (Aeschylus, Agamemnon, lines

567-70) into justice’s account?

Doing justice to the dead 107

Here I want to develop further the argument that a relational persistence

underpins their status as claimants on recognition and justice, one grounded

in their belonging to an enduring mesh of relations of justice characteristic

of a political community.>” We said earlier that we attribute to political com- munities an identity understood as a cross-generational enduringness of some

broadly normative aspects of their existence: for example, collective and inter-

generational responsibility (past- and future-oriented), a shared perception of

basic justice, a constitution to express it Gf only as an aspiration) and a will to

live together in an enduring society.** That institutional dimension is ambigu- ous, for reasons discussed earlier in this study, and in particular because in the

presence of non-representative governing institutions it is difficult to make

the case that the community as a whole inherits and bears responsibility for

the actions of a dictatorial ruling group. Consider the following illustration of this, one that links regime change and an initial refusal to accept responsibility

for and apologize to dead victims.*® In 1992, then President of France Francois

Mitterrand declined a request that he should publicly acknowledge France’s role in facilitating Nazi Germany’s deportation and murder of French Jews.

Mitterrand rejected the idea that France was responsible, arguing instead that

the Nazi defeat of France in 1941 ended the Republic for the remaining years

of occupation. “The Republic,” he stated, “across all its history, has constantly

adopted a totally open attitude [with regard to the rights ofall its citizens]. Thus,

do not demand an accounting of this Republic.”® At the core of this refusal of responsibility and rejection of public remembrance of the crimes and their

victims®! was the claim that France was identical with (as De Gaulle expressed

it) “une certaine idée de la France” (“a certain idea of France”), namely that of

free, republican France. As such, the Vichy regime was a rupture, a parenthesis

in the otherwise continuous history of the Republic, “a new regime, differ-

ent and temporary” as Mitterrand described it. France, which is the Republic, is not, on this view, the proper locus of responsibility for these crimes that

occurred, in the words of the commemorative plaque at the Vél d’Hiv, dur- ing the years in power of “The de facto authority called the ‘Government of

France” (“L’autorité de fait dite ‘Gouvernement de l’Etat francais’ [1940-1944]”), In short, the institutional disruption in the continuity of the French state meant

(for Mitterrand) that no apology was owed by the Republic for the crimes of

the Nazi/Vichy interregnum. Subsequently, in 1995, President Jacques Chirac

did accept responsibility on behalf of France, a recognition that was later reiter-

ated by Prime Minister Lionel Jospin. Perhaps in the end we need to allow for the more fluid definition of the sources of the community’s moral persis- tence that Habermas offers in his phrasing of the responsibility of present-day

Germans for the Holocaust: that it was “out of the middle of our lives together

[that] these singular crimes took place.”°4 Though that phrasing is not without its difficulties, it captures the manifold sources of an enduring community of

accountability, and of the persistence of dead victims as claimants on justice

even from a regime very different from the one they originally suffered under.

108 Doing justice to the dead

Persistence makes a community the bearer of its past and the steward of its

future, and gives it an enduring relationship to the absent persons of both past

and future. As the debates over Confederate war memorials and over envi-

ronmental policies make plain, we don’t consider the Civil War or America a century from now to be “another country” entirely unrelated to our present

political community, its debts, projects, and injustice/justice. This suggests that

we might think about the enduring claimant status of absent victims (making demands on us in the present) as an expression of their embeddedness in those relations of justice that belong among the features of a persisting political com-

munity. That embeddedness carries me to times in this community’s duration before my living presence in it: “carries me to” meaning I acknowledge those

past times as mine, in responsibility, regret, or gratitude. The underlying rela-

tions of justice and injustice are part of that enduringness, so that for example

when we say that “the American slave system was wrong” we understand it as

a proposition for an enduring community (America), one that in the present

recognizes the long-gone victims of this gross injustice. Inflected and qualified

by the practical limits that their death and our temporal location impose, we

acknowledge past enslavement as our wrong (not that of a distant and distinct

community bearing the same name but separated from us by time and death in

a way that severs that past from our concern for justice), and its absent victims

as claimants owed recognition and whatever other justice can be given them.

In Aeschylus’s Libation-Bearers, Orestes, standing at the grave of his mur-

dered father, says to him: “So, though you died, you shall not yet be dead, for

when a man dies children are the voice of his salvation afterward.”®* Observe

that Orestes does not say that children will be their parents’ memorialists, or

witnesses to what they once were but are no more. Rather, they are the “the

saviors” of their father’s hearth (hestias patros. The Chorus addresses them as

soteres, saviors. Libation-Bearers line 264). Orestes calls children the “corks [that]

bear the net up, keeping safe the spun flax that stretches up from the depths.”*’ The imagery here is of the community as a flaxen mesh, a net, stretching from

the depths to the surface, and kept by these corks from retreating back into the

invisibility of the lightless deep. “From the depths” describes the “far place” of

the past and its dead. That flaxen net, the intertwining of past and present, the

dead and the living, extends from those dark depths into the broad daylight of

the present-time surface, the world of the visible and living, binding the dead

and those alive in one continuous community.

In its most familiar ancient form, this is the world of miasma, the intergen-

erational transmission of guilt, and the pursuit of vengeance. I will return to

that further on, but here I want to discuss a different, though related, dimen-

sion of this continuity. The living, in this case the children, keep that mesh of

relationships intact, and in so doing they are its “saviors,” those who restore the

“lost ones” (to the extent that they can be restored) to their community. The

intact net defeats not all the losses that death inflicts but those that we might

Doing justice to the dead 109

term relational. It does this, in the image of the corks, by holding the net up, meaning to keep it present/visible and not to allow it to recede from the sunlit surface into the engulfing darkness of the forgotten, invisible past. They them- selves are part of that mesh, and their ties of obligations to its other members

derive from the fact of their being counted among its members.°® The duty

to be such a savior originates in membership in the family, and so constituted

as a subject of a certain kind, occupying a place on that broad net with bonds

made of responsibilities and entitlements in relation to its other subjects. It is that place in a mesh of social relations, recognized as such by its members, that

gives the person a core part of her relational identity, and attaches her to others

in a fabric of a shared world, including its norms, obligations, and expectations.

We can see something like this in Aristotle’s argument (Politics 1253a19-20)

that the city is prior to the individual, and that when the community ceases to

exist so too in a sense does the individual whose being as a subject of a certain kind was to be embedded in that community. In Aristotle’s celebrated image

(Politics 1253a7), the solitary individual resembles an “isolated [literally “not

yoked,” azux] piece [in a game] of draughts.” A chess piece removed from its

matrix of sixty-four squares, one no longer yoked to the board, its spaces, rules

and interactions, and to fellow pieces, pawns, rooks, knights and so on, is no

longer the piece it was when engaged in the warring communities of the chess

board. Knights and the other pieces are what they are, and have the identity

they do, by virtue of that mesh.

Of course it is not only the children or other blood relatives who are the sav-

iors of the dead, or in Aeschylus’s image, the corks keeping the flaxen net from falling irretrievably into the sunless depths. In matters of past injustice, the

Erinyes, or Furies, those “bearers of justice” and friends of the dead, also have

a crucial role. Recall our earlier discussion of the Lucanian vase’s depiction of

the accusing presence of Clytaemestra made possible by her reflection in a mir-

ror. It is a Fury, facing Orestes, who holds that mirror, and that suggests the

Furies’ special relationship to the dead: they assist in assuring the integrity of

the community across time by not allowing the unjustly dead to recede into the

dark depths of their absence. Their closeness to the dead is symbolized by their chthonic character, and indeed they may initially have been understood as the

ghosts of the dead. By the classical period, they had become defenders of the dead, their “witnesses.”’° The Furies represent the dead, make them present to

others,’! as on the Lucanian vase, not in the full panoply of their human traits, but as subjects embedded in and partially constituted by the enduring relations

of their community. Having been violated, and being subjects of justice still,

they are therefore claimants on vengeance.” The Furies’ relationship to the dead is not one of consanguinity but is rather grounded in justice: the Erinyes

are at once “witnesses for the dead” and “helpers of justice,” two aspects of the

same relationship and not different functions.’”? The Furies, in being aveng- ers,” are friends of the dead and therefore helpers of justice as well, assuring its

110 Doing justice to the dead

efficacy even where human hands falter. The vengeance they pursue is, as Elec-

tra suggests in Libation-Bearers (line 120), the work of a particular kind of agent,

a dikephoros, an avenger, a bringer or carrier of justice.” In all this, justice is

restored, the dead victim represented, her place in the community affirmed, and her tormentor’s seeming victory (her death and annihilation) annulled.

These “friends of justice” make the absent victim present to the living, and in

so doing help mend a part of the community’s disrupted integrity. They keep

that flaxen net intact from the depths to the sunlit surface, from the past and its dead to the living and present, not allowing past crime to go unanswered, the

latter a failure that would rend the flaxen mesh of the community. The Furies

accordingly are among the guarantors of the bonds and order of the community

across its long duration.” The Furies, as we said, though not blood relatives of the family, are never-

theless “kindred” (suggonon) with it.’’ They are kindred, Sommerstein observes, because “they have been called into existence by the murder of members of the

family by other members of the family.”’* Because of these crimes, the Erinyes have their role in the guarding and mending of the community’s philia, the

broad flaxen mesh of its order arrayed across time. Concerned above all with

matricide,’”’ they pursue Clytaemestra’s son, and because (in their already frayed

community) her children will not be her avengers, the Erinyes alone do that

work,®° They are her assistants in taking revenge on Agamemnon for his kill- ing of Iphigeneia,*! and Agamemnon’s helpers in driving Orestes to avenge him against Clytaemestra.? The Oresteia’s Erinyes are not psychological phenom- ena born of fears or a thirst for revenge.®? Rather, they are the real presence

of vengeful justice®* called into being, as we saw, by the nexus of norms and attachments that is the family, and directed to their tasks by both the dead and

the living.® Allow me to approach this from a somewhat different perspective: that of

the unity of the family in the Oresteia.®° Strikingly, this is made most visible in the very violations of the norms and obligations that express its solidarity:

Clytaemestra’s infidelity, her murder of her husband, Agamemnon’s killing of

his daughter, and Electra’s and Orestes’ slaughter of their mother. All of these

actions break the commitments inherent in the philia of the community yet at the

same time they illuminate the fulfillment of these same norms.®’ Both the vio- lations and the preservation of the obligations of philia, alike by blood-relatives and their “kindred” Furies, show the basic elements of that flaxen mesh, the

threats to its integrity and the available remedies. It is woven of shared obliga-

tions, expectations, and recognition and its members (dead and living) are con-

stituted by their position in it.8° This mesh is philia and its meaning goes beyond its customary translation (as friendship or affection) to the skein of relationships

that constitute the community.’ And though the relevant philia community (here the family) is understood in the first instance as a consanguine group, the

reach of this core aspect of a shared society extends to the political community

Doing justice to the dead 111

as well. Indeed, Aristotle counts philia among citizens as the greatest gift to the

city.°° It is these relationships, the positions along that mesh with their attendant obligations and expectations, that settle the identities of the persons embedded in them. Those sarne norm-saturated relationships that locate one in that flaxen

net also determine a world of outsiders, and of enemies (ekthroi), with whom

relations are not pervasively governed by these norms. Note that although blood

ties are central to the paradigmatic philia community, that of the intergenera-

tional family, even its members can by their actions become enemies and thus

place themselves outside its normative structure. We see that in Antigone, where

Antigone threatens her sister Ismene, saying that if Ismene fails in her duty to

her dead brother Polynices, she will be hated as an enemy (ekthra) of the dead.”!

Whether Electra, for example, is bound to respect Clytaemestra (as her mother)

depends in part on their shared blood but also on the effect on her place in the

family of Clytaemestra’s infidelity and her role in the murder of Agamemnon.

As I remarked earlier, it is a sign of her loss of position in the family, and with

that of the norms of philia that would otherwise have governed family members’

behavior towards her, that Clytaemestra has no avenger, no “justice-bringer,” in

her family but must rely instead on the Furies alone.” We said that a person’s position in the family community confers on her a

certain identity including a recognized set of obligations and expectations in

relation to others. One way in which classical tragedy expresses this, and binds it to absence and ignorance/blindness, is the device of recognition (anagnorisis)

or discovery.”? Consider this scene from the Libation-Bearers (lines 183ff). Elec- tra has just finished her prayer for vengeance (for the murder of Agamemnon) and for a glimpse of her “most beloved” Orestes, and is examining a lock of

hair and footprints which she hopes may be his, when Orestes comes out of his

hiding place and approaches her. At first, not recognizing her brother, Electra addresses him as xen or foreigner (line 220). But guided by the material traces

of his absent~presence, she at last recognizes him:

Dearest one, treasure of your father’s house. The seed we wept for, in the

hope it would sprout and save us. . . . you fill four roles for me. I must

needs address you as father, and the affection I owe to a mother falls to

you—for her I hate, with every justification—and also that of the sister

who was piteously sacrificed . . . and you were a faithful brother . . . you

will win back possession of your father’s house again.

(lines 235-9)

These four “portions” (literally “four parts,” tessaras moiras) are forms of philia

within the family. The blood relationship is of course unchanged, and so the

redirection of her familial affections and their associated obligations to Orestes alone must have other origins, and those I suggest tell us something about the

philia norms that govern and cement the community as a flaxen mesh.

112 Doing justice to the dead

Clearest is the reason underlying the transfer to Orestes of Electra’s affection

for and obligations to her mother. Electra hates her pandikos, “with all justice,”

“most justly.” “Most justly” because Clytaemestra has, through adultery and

her killing of Agamemnon, violated the obligations of philia and in so doing

has unraveled its ties. Clytaemestra is now an outsider and enemy, someone

to be hated. Because of what she did, there can be no bond with her, and so

Orestes must accept this transfer, which seems less a redirection of emotions

and affections than an objective change in their relationship. The devolution

of Agamemnon’s philia~place to Orestes is more ambiguous. Is it because he is

dead? This seems unlikely, given that (in the Libation-Bearers) Electra entreats

him at length, even passionately. Despite his death their relationship, though

radically diminished, survives at least in the sense that as his child she owes him

vengeance. Or does she not speak of Orestes taking on her philia for Agamem-

non, but only that she will call Orestes father, because her biological father

“piteously sacrificed” Iphigeneia, a loss that weighs heavily on her? Perhaps

that relationship is also frayed even though Electra willingly seeks to avenge

Agamemnon’s fate as an expression of her solidarity with him. And finally

there is Orestes himself, Electra’s “faithful” brother.

Here are some points in this recognition scene that deserve particu-

lar emphasis: (1) the act of recognizing Orestes is bound up with the norm-

saturated place that he occupies in the long family mesh. Orestes is to be the

savior of his father’s house, the cork keeping the mesh afloat; he is the bearer in

different ways of the “four portions” of her family philia. (2) The utter rejection

of Clytaemestra in Electra’s speech suggests that violation of the obligations

and norms of the relationship mesh annuls one’s place in it, and in so doing

dissolves one’s identity and status as a subject of that philia-based justice.” (3) As

we noted earlier, blood lineage though clearly a part of the mesh does not

entirely determine the boundaries of the philia-group. Observance of norms is

also key, hence the ambiguity of the description of the killing of Clytaemestra:

is it matricide, or the killing of an enemy?

In this move from absence and invisibility to presence, Orestes comes to be

recognized by Electra as her brother and savior of their father’s house. He is in

that way restored to his proper place in the flaxen mesh of familial relation-

ships. This, carried over to the question of the status of the dead, suggests that

absence, the invisibility of a person as a member of a community, is righted by

recognition: whether Electra coming to see the man approaching her as her

brother, or Clytaemestra’s reflection in the Furies’ mirror, her image directed

towards Orestes, calling to be recognized as a wronged subject of justice. Con-

versely, non-recognition would amount to a “second death,” not a bodily one

of course, but the abolition of the person as an occupant of that philia mesh

composed of affection, obligations, and expectations. Non-recognition seals

the absence of the person; recognition overturns absence and reasserts the com-

munity’s ties across death and the passage of time. It holds up the mesh, keeping

Doing justice to the dead 113

the victim from falling into invisibility in the lightless depth of the forgotten. Recognition is the “light for their darkness,” an affirmation of their continued participation and standing in the community of justice.

One of the motifs then of the Oresteia is that the fact of absence does not alto-

gether exile the dead from their community, the long mesh binding together the dead and the living in norm-governed relations. Their fate, and the distance

from the living that it creates, changes the perspective from which they are

viewed and sharply limits, but does not abolish altogether, their standing as

claimants on justice. In particular, it does not diminish the fact of what hap-

pened, or our ties and debts in justice to past persons. It does not reduce the

victims to nullities, to whom no recognition or response is owed (or is pos-

sible). When we speak about their demanding persistence we obviously do not

mean in the full particularity of their interests, plans, wishes and so on. Rather

what is intended is that the distance created by time and death does not erode

that relational presence. Doing justice to the absent dead is (in central part) to

reaffirm that persisting relational status and make it (perhaps all that remains

of them) visible to the community, to have the living ‘see’ (notice, recognize)

the dead as a (limited) kind of subject still present among them. The Furies’

mirror shows both the necessarily oblique presence of the dead and their sta-

tus as demanders of justice, addressing their living, present time, community.

In representing the dead victim, they do work similar to this and thus “stand

firmly on the side of dike [justice].”°> Conversely, the refusal to recognize

her severs that relationship. For the wronged victim, that is a second death, a

rendering invisible not of her (now disappeared) interests or preferences but of

her relationship in justice to her community. For that community, the failure

to acknowledge the ties of justice that are a core part of its identity across time

amounts to an unraveling of that long mesh.”

Time, death and the power of the present threaten to exile the absent victim

from the place of justice, from her embeddedness in that flaxen mesh. There is

yet another form of displacement that touches equally the living and the absent

victim. This is a conception of doing justice that creates a distance between

the victim and those institutions where she might seek an answer to the wrong done her, or better which decenters her in relation to them, as in a different

way death and the passing years threaten to do. It rejects the demanding cen-

trality of the victim evident in the Lucanian vase’s depiction of Clytaemestra in

the Furies’ mirror. On one widely held interpretation of the Oresteia, Athena

in effect moves Clytaemestra to one side, and in her place and those of her

vengeance-dealing helpers, the Furies, a public, law-governed, institution is

created, the Areopagus.

This is often seen as a foundational move away from the victim and her

avengers, with their backward-looking revenge-filled gaze, and thus a turn

from a barbaric to a civilized administration of justice aiming at the public’s good and not driven by the thirst for retribution.®’ The result is the primacy

114 Doing justice to the dead

ofa generalized public good steering the work of justice and a resistance to the retrospective, violent, and private character of the retributive victim-centered

view.*® This suggests that even if we bridged the distance between us in the

present and her in the far place of death and the past, she would not (under this conception of doing justice) remain among its central subjects. The vic-

tim’s “far place,” her absence, is then one created then not only by death and distance in time but also by an expropriation of her “ownership” of, or even

her defining presence in, the process of justice. This displacement affirms a

variant of the absence of the victim, and in that way is related to the principal

themes of this section. Reflection on this offers an occasion to underscore not

only her absent presence but the centrality of the victim and the need for a

response, for recognition. It also illuminates the relational dimension of her

status. For as we said, in banishing her in this way, her relationship to us in the

present, as subjects sharing in a community of justice across time, is denied.

That is a further injury to her and a weakening of the enduring bonds of the

community.

Let us return to the Oresteia, and consider the place of the victim in it. Elec-

tra’s prayer in the Libation-Bearers (lines 124-51), followed by her recognition

of Orestes, show two kinds of solidarity. One, which we have just discussed, is

expressed in acts of recognition: the saving of the dead from oblivion and the

restoring of them to their place in the community. The other is evident in her revenge prayer. Electra’s appeal for vengeance for her father’s death expresses

the view that the murder of a family member is an injury to both the victim and

her family. Aeschylus’s flaxen mesh unites its members in philia, in a mutual-

ity of obligations and expectations, but also and relatedly in the “wild justice”

of vengeance. Blood vengeance, Glotz writes, is essentially an act of solidarity among the living, and between the living and the dead.” The centrality of the

victim, her embeddedness in the mesh of the intergenerational family, and their

obligation to secure revenge for her as the core of doing justice, has the effect

(according to one important line of interpretation of the Oresteia) of displacing

justice as a public good with the private, and the wild and bloody, world of the

agerieved family.

Here again the Eumenides and the uneasy tension of its conclusion help us

to frame the issue. The Furies not only resist the oblivion that time and death

threaten to bring to the victim but also (at least initially) the city’s effort to

make itself and its goods (and not the victim’s demand for retribution) the cen-

ter of justice. Their mirror represents the victim in resistance then not only to

the corrosive effects of death and time but to the displacement underway at the

hands of the political community. In the conclusion to the play, the authority

of the city’s laws and judicial institutions over the Furies is established. The Furies are, it seems, doubly defeated; their role as representatives of the victim,

“champion(s) of dead men,”!° is replaced by the institutionalized authority of the city’s courts and laws. And Clytaemestra, who was to be made present

Doing justice to the dead 115

through their representing mirror, is left silent and invisible, her ties in justice to those around her set aside.

As I remarked earlier, there is considerable debate over this there in the

Eumenides. Perhaps the most familiar interpretation is that the trilogy is an

account of the beginning in the West of the primacy of institutionalized legal

justice, and that Aeschylus concluded the Oresteia with a defense of a state-

governed system of legal justice, to replace the archaic victim-centered world

of familial justice, self-help, and blood vengeance.’*! On that reading, the vic- tim and the Furies, her helpers in justice, are either both displaced or at least

domesticated, that is brought under the authority of the political community.

The state, its laws and purposes, take over the task of doing justice, and decenter

the victim (and her) family, elevating the public good over the particularizing

passion for retribution. Others see there a victory for rhetoric and sophistry.

The court’s first act (with Athena’s assistance) is the acquittal of Orestes (“hav-

ing slain his own mother, [and] confessing the fact”) aided, as Apollo says, by

“speech of persuasive charm” and “devices.”!™ Still other commentators resist that reading, and interpret the conclusion not as a vanquishing of the victim

and of her pursuit of vengeance but as their sublimation in the city’s legal

institutions.) In that thicket of interpretations, the following point deserves to be empha-

sized as a caution against overstating the degree of change in conceptions of

justice charted in the Eumenides. Even in this transition from private to pub-

lic justice the victim's place, though transformed, remained (at least partially)

intact. The Furies are made subordinate but they are not banished, and Aeschy- lus makes plain that as representatives of the victim they have a central position

in the city’s justice, something true of the actual practice of Athenian law as

well. The state, in claiming for itself the power to steer justice, nevertheless

allows for the victim’s (represented) presence as a subject of justice and for pur-

suing vengeance in her name.!°* It was the dead victim who was understood to have suffered an injustice, and the court was there to exact vengeance on

his behalf! In Antiphon’s forensic speeches, for example, the accusing voice speaks (much as the Furies had) as the representative of the murdered victim:

“In the name of the victim ... we charge you to appease the wrath of the

spirit of vengeance.”!° The victim, brought back now not by the Fury’s mir-

ror but by the private initiative of his family in the court, is to get his measure

of justice. The legal proceeding is understood in the first instance as the ful-

fillment of a debt owed to him, though other goods (deterrence, and freeing

the city from the pollution of an unanswered crime) were also part of these

court speeches.'” The principal harm is thus not a generalized public injury but the offense the victim suffered. In the Eumenides, Clytaemestra does not

get her retribution: her killer is freed and the Furies are subordinated to the

authority of the city’s justice. Only public vengeance is now tolerated and thus

the political community alone (not the Furies or family members) can punish

116 Doing justice to the dead

legitimately.' Perhaps in this unresolved tension, Aeschylus meant to show us the limits both of the Furies’ exclusively victim-centered approach to justice

and of an institutionalized conception of justice which puts a generalized public

good (e.g., the peace of the city) above the need of the absent victim for recog-

nition and retribution! Who speaks in the accusing voice and on behalf of the absent, whether the

Furies, the victim’s family (in Athenian law), or the trial prosecutor is less cru-

cial here than the centrality of the victim’s represented voice. And controversy

about the centrality of the victim’s voice is by no means foreign to the modern

period.!!° Consider the 1961-1962 trial of Adolf Eichmann in Jerusalem. There, as we noted earlier, the Israeli Attorney General, Gideon Hausner, introduced

“six million accusers... . Their blood cries out, but their voice is not heard.

Therefore I will be their spokesman and in their name I will unfold the awe-

some indictment.”!!! Eichmann’s dead victims had a represented presence in

the courtroom with which to confront their executioner. This expression of a

Fury-like victim-centered prosecutor’s role was roundly criticized by Hannah

Arendt who wrote that it gave substance to the “chief argument against the

trial, that it was established not in order to satisfy the demands of justice but

to still the victim’s desire for and, perhaps, right to vengeance.”"!? Trial and punishment are not proxies for, or vehicles of, a settling of accounts between

victims and perpetrators but ways to restore “the general public order.” In that

sense, justice involves the “displacement” of the victim.'? The relevant actors are the state, the public (not the victim) it represents, and the accused. The vic-

tim ceases to be the “owner” of the grievance, and his voice is not a guiding one

in the process of doing justice. Indeed, in Gardner’s account one of the defining

purposes of the criminal trial is precisely to remove the victim from the doing

of justice. Law-governed justice has “confiscated” both her grievances and her

standing in the process.!4 Yet to make the victim invisible in this way seems to misplace a crucial rea-

son for doing justice.!!® The victim, a person having suffered an injustice, would

appear to be key. The crime is first and foremost a wrong against her, though

given her embeddedness in the political as well as the familial community all are

touched by this injustice. And so the prosecutor’s voice is shaped by the central-

ity of the wronged victim.'!® Punishment is at least in part a correction of that

wrong, a retributive act, and a recognition of the victim as unjustly harmed and

not simply a vehicle for general or specific deterrence, and reform or incapacita- tion of the criminal.!”” The trial on that view is a “calling to account,” a locale of

answering and condemnation for the harm done the victim." It is a public event

in the sense that it expresses the enduring relations of justice between persons

present and absent. It cannot therefore marginalize or dispossess the victim. Like

the Furies, the prosecutorial voice pursues the victim’s grievance “with her and

for her.’ In classical Athens, that pursuit was the responsibility of the family

given its special ties to the victim, and the court was its instrument. Here the

Doing justice to the dead’ 117

public character of that pursuit expresses her shared status with us, related to us

as a community of justice, one and all. Central is a concern for the victim.'?°

Thus for example the Saville Bloody Sunday Inquiry, discussed earlier, may have

had many political effects in the present and multiple strategic motivations for

its creation. And family members of the dead, with their intimate bonds to the

victims, were long-standing advocates for a judicial response to the killings. But

in the end, its work had to do not primarily with general social goods nor with

the families and their private relations to the dead but with the thirteen dead persons, citizens wronged and owed therefore a response. This is not the world of “wild justice,” of private self-help but rather an enactment of the community’s

solidarity with its unjustly treated members.

If absent victims remain claimants on justice despite the distance of death,

time, and judicial decentering, what is it to act in response to the wrongs they

suffered? In discussing the Oresteia, I have been concerned with its insistence

on the enduringness of the (represented) past/absent victim as a person owed

justice. Yet, as I have also said, absence, death and distance in time radically

limit the ways in which we can respond to them. Here I want briefly to sketch

a case that within those limits, representation-remembrance does a core part

of the work of answering the wronged absent one. Recall again the Luca-

nian vase image of Clytaemestra, Orestes, and the Furies with their mirror.

The representation of Clytaemestra in the Fury’s mirror partially nullifies the

absence caused by her death and recognizes her as a subject of justice entitled

to confront her killer. In that manner, she becomes visible, meaning that she

is acknowledged as a claimant on justice. Her reflection in the mirror at once

represents her, makes her present to us and it tells us that because of her radi-

cal absence, she can only be shown obliquely. This is meant to be an image of

justice for the dead: her demanding presence, represented to those present in

the Furies’ mirror, confronting her tormentor and insisting on a response. It is

the moral “inversion” that overcomes the distance of time and death. And it is

an “inversion” in the sense that the enduring quality of her status as a claim~ ant, and of the obligation to answer the wrong done to her, are made present

and insisted on against the view which sees them, in their distance from us, as

having no reality.’7! Memory yields a similar form of inversion, one of a partial overcoming of

absence. We saw in Ellison’s writings an argument that American forgetful- ness consigns the past and its injustices, and racial injustice in the present, to

invisibility. Remembering, conversely, restores presence and recognition. If

memory, as Aristotle writes, is “of the past”!?? it can nevertheless act (as does the Furies’ mirror) not as a window into an unreachable time but as the re-

presentation to the living of the presence of an absence. In its oblique fashion,

it reveals the victims as present, making them visible in the here and now. Consider Claude Lanzmann’s film, Shoah (1985). The subject of the film, Lan-

zmann writes, is “death . . . [but] the dead cannot speak for the dead.”!

118 Doing justice to the dead

The film, he emphasizes, is not a documentary: there is no commentary, no

archival material, no historical perspective offered. Everything is in the present,

the present not as the dominant temporal register erasing the dead from view

but rather as the shared locale of the living and the “dead [who] cannot speak.”

“The living,” Lanzmann says, “disappear in order to be the spokesmen for the

dead.”!25 Shoah, he writes, is thus not a historical document but an “incarna-

tion” or “resurrection.” It is not about the past at all, because (Lanzmann

argues) remembrance preserves the distance between past and present, whereas

his film begins with the presence of Shoah.!?”

When political communities engage in trials, truth and reconciliation inqui-

ries or memorials they, like Lanzmann, (partially) close the distance between

absence and presence, the past and the present, the dead and the living, and in

so doing function as a counterpoise to the weight of the present. And in par-

ticular they act to sustain and insist on the enduring status of the victim as a

subject of justice. Antoine Garapon, a French jurist, argues that trials (and com-

parable judicial or quasi-judicial proceedings) are among the ways in which we

try to master distance (his focus is on temporal distance), to deny it its counter~

moral effects. The trial is a public recalling of the absent (past), an actualization

and representation, making possible the recognition of the victim as an injured

subject of justice.!78

They have that status by virtue of their belonging to a community of justice

(or that they ought to have had that status and are now being acknowledged

to have been unjustly excluded from it).'?° Yet, as Ellison makes clear, the rec-

ognition owed them is always uncertain: perhaps because the mirror-reflected

face has been rejected as a party to justice, or simply because it is dismissed as

the phantom of a “perfect non-entity.” These absent persons then depend on

the present, on us in the here and now, to acknowledge their status as wronged

fellow subjects.° This is already implicit in the Lucanian vase painting. The

mirror and those holding it are needed not to confer on Clytaemestra her stand-

ing and presence, but to represent her to the here and now, to have her status

and demand for justice recognized. Conversely, their inaction would inflict a

second, now civic, death on her. So the dead of a political community have an

enduring relationship to us, one expressed in the persistence of their demands

for recognition and justice. And they need representation in order to have those

ties and claims (faint as they may be in the distance of death and the passing

years) made visible to their community. The absent victim, then, is at once

dependent on the present, and her (represented) presence acts as an imperative,

a form of constraint on, or resistance to that present, its easy forgetting and its

view of the absent as nonexistent.'*!

We can draw these threads together by saying that the continuity of the

victims as sharing with us in a community of justice across time brings with

it a duty of recognition of that still present status, and of the relationship of

solidarity among citizens that it invokes. Institutions of justice as sites for the

Doing justiceto the dead 119

making present of the absent are among the locales of this récognition.. Not to acknowledge them, or to exclude them from the locales where justice is done, is to overturn their relationship in justice to us.'** It is perhaps for this reason that statutes of limitation and amnesties, which in their different ways put an end to

the presence of the absent victim of injustice, are so deeply controversial, espe-

cially in relation to gross violations of human rights: they nullify the standing

of the dead both (and relatedly) as members of the community and as claimants on justice.!> Seeing the absent victim of injustice in this way suggests that her enduring presence under justice is central, and not merely derivative from the

relationship of her fate to present harms or to the status of the living inheritors/

victims of those wrongs. The injustice done her also persists as a matter call-

ing for a response not principally because it has downstream effects on those

who are present and alive (though it often does of course) but rather because

the victim herself persists as an injured subject of justice.434 She is not dust and nothing, but is present even in our “far place,” a claimant on justice whether in

her (represented) presence in the trial, that small stage of doing justice, or in the

grander processes by which we deal with gross historic injustices. Still, distance, death, and separation establish the outer boundaries of this

presence. As we observed earlier, to acknowledge the dead as claimants on jus- tice is not to consider them as “repatriated” to the world of the living. They are not bearers of the panoply of traits and interests they had antemortem nor does our relation to them have the fullness it had in that time when they were

alive and here. Their presence, whether represented in Clytaemestra’s voice

heard in the Eumenides, her face reflected in the Fury’s mirror (in the Lucanian

vase painting), or in the images of the Bloody Sunday victims in Derry, is not

of the persons they were before death. Rather they are bound to the present by an embeddedness in persisting relations of justice. Their status as that kind

of subject does not cease with their death or the passing of the years. We fully

understand that in many humanly important ways they are indeed irretrievably

lost, yet when we come to do justice we accept them as present, if only on a small

stage. From this follow the limits on what can be addressed, and which harms repaired. At one level, this is straightforward: her full status quo ante person

cannot be restored. There is no possibility of that kind of “repayment.” At another level, these limits are a function of what does endure of her person. She

is neither “dust and nothing” nor a presence endowed with the panoply of the

hopes, needs, interests, and desires of a living person. She is simply a claimant

on our recognition and justice. As we have observed, public acknowledgment of her as a person owed justice saves her, not from all absence but from a certain kind of oblivion.'*” That recognition of the absent victim as present neverthe- less, does not restore her as a bearer of interests or as a claimant on restorative

compensation. What remains of her is the standing of someone to whom vis-

ibility and recognition, truth and justice are due.'* And once that is done the

debt between her and the community of justice of which she is a part is quitted.

120 Doing justice to the dead

The call to respond to the dead victims of injustice is then fraught with perplexities. I have suggested that we can understand the continued and central

presence of the victim as seeking, and owed, a response and recognition. That

enduringness confronts us with the imperative to answer historic injustices,

And it also tells us of the limits of any such calling to account across time: the

victim in all that she was is no longer present. There is therefore much that cannot be repaired. Theirs is a demand for a kind of visibility, that the absent

be represented as claimants on justice. This speaks both to the fragility of that

act of representation, which depends squarely on us in the present, and to its

centrality to doing justice, to the demands it makes of us. The subjectivity of

the victim, her place in a community of justice and her standing in relation to

her attacker are here brought back into the order of justice.” That imperative to recognize the dead victim (to acknowledge the endur-

ing relations of justice that bind us to her) places a responsibility on the politi-

cal community not to seal her absence, not to deny her continued presence as

one among us, a wronged member of a community of justice. Discussing the

(post-1983) Argentinian transition to democracy, George Fletcher argues that

one function of the judicial response to mass violations of human rights “is to

express solidarity with the victim.” Not doing so is to make society complicit

in the “victim’s state of subservience.”!*° Perhaps that is the enduring meaning of Antiphon’s remark that the city is polluted, or stained, if it does not act on the murder charge before it.'4! The city’s relations of justice over time, and the status of its members as subjects of justice embedded in that community, are

defiled by such failures, its flaxen mesh torn.

The acknowledgment of that presence is a cornerstone of doing justice across

time. It is one form of the “moral inversion” of absence characteristic of the

work of justice. From the standpoint of the community, the door then closes on

the one remaining and relevant characteristic of hers, that of being a subject of

justice. This may often be the most that we can do by way of repair of the worst

historical injustices, and it may be sufficient as well. It may be sufficient, that

is, from the standpoint of justice if not that of her family, co-religionists and so on, for whom she was more than a subject of that civic kind. Recognizing the

victim and perpetrator, and granting that these crimes came from within our

midst, is the predominant form of answering the call of the victim. Addressing

historic injustices in this manner permits us to see the absent victim as (in a

way) forever distant from us, and therefore to accept that absence sharply limits

the possible range of response to historical injustice. It also allows us to see that

she is not a nullity: ifin Camille Laurens’ words (quoted earlier), love in a fam-

ily is an “exception to [the] nothingness” of death so here “concern for justice”

is an exception to the closed pastness, the “sealed well,” that death brings to

victims of injustice. In brief, it permits us to see her as present and not as past

perfect; present, as I said, not in the manifold of what she was as a flesh and

Doing justice to the dead. 121

blood human being but nevertheless as one among us, a continuing (if radically limited) subject of our shared relations of justice.

That locale of justice, whether a courtroom, a truth commission hearing, or a memorial, is (as we just noted) also in a way the terminus of their presence as claimants on justice. From the standpoint of justice, the recognition of the

victim, the determination of her fate and whatever repair or punishment are

possible, draw a final line under her presence. Perhaps this is why judicial pro- cesses sometimes evoke concern: after the absent victims receive their answer,

they disappear as claimants on justice.'”? For their families, co-religionists and

so on, for whom they were more than such claimants, that closure is not the end

of the absence that her loss has inflicted on them. On the other hand, for the

community of justice of which they were a part, the Furies’ mirror is now put

down. Once answered, the victim-claimant has no further demands to make

on the community’s justice. Because he has “fallen out of time,” once answered

and recognized, he can suffer no further injury and so, in the words of the sister

of one of the Bloody Sunday dead (Michael Kelley), he can now be “at peace”

and so too perhaps can the living.

In the end we have something like an answer to Electra’s challenge: are the

dead mere “‘dust and nothing,” irrevocably distant from us in “this far place”

we inhabit, and so not a concern of justice? In many respects, they simply are

“dust and nothing,” having in death irrevocably lost much of what belongs to the living alone. They do however retain a liminal presence, visible so to speak

if only obliquely, in the sense of something missing, a shadow cast over our

world until they are given recognition and justice. That answer to their fate,

always troubled and incomplete, rests on their presence, the partial annulling of

their absence, and the recognition of the status they share with us in the pres-

ent. The twenty-one word finding of innocence given to Kevin McElhinney

by the Saville Inquiry, the prosecutor’s speech representing the murdered Jews

of Europe to the Israeli court trying Eichmann, and other efforts to address the absent victims of injustice are perhaps best understood in Michel Zaoui’s obser-

vation about the trial of Maurice Papon for crimes against humanity. “The

work of justice,” he wrote, “is to give a response, one not unworthy of the

irreparable.”"49

Notes

1. On reciprocity and relations between generations, cf. John Rawls, A Theory of Justice

(Cambridge, MA: Harvard University Press, 1971), 291. 2. Camille Laurens, Cet absent-ld (Paris: Gallimard, 2004), Urbain writes that similar

phrases, such as un mort-ld, make the dead appear close. Jean-Didier Urbain, L’archipel

des morts (Paris: Payot et Rivages, 1998), 171. Consider also Roland Barthes’s cau-

tionary question: “In the phrase ‘she no longer suffers’ to what, to whom does ‘she’

refer? What does this present [tense] mean?” Roland Barthes, Journal de deuil. 20 octobre

1977-15 septembre 1979 (Paris: Seuil, 2009), 25.

122

& OH

UI

oo

10.

11. 12 ae 13.

14. 15.

16.

17.

18.

19.

20.

ai.

Doing justice to the dead

Urbain, L’archipel des morts, 25; Henri~Pierre Jeudy, Conte dela mére morte (Bruxelles:

La lettre volée, 1997), 80; Robert Spaemann, Personen. Versuche tiber den Unterschied

zwischen “etwas” und “jemand” (Stuttgart: Klett-Cotta, 2006), 173-4. I borrow the

phrase “porous boundary” from Julia Blackburn, Time Song: Searching for Doggerland

(London: Jonathan Cape, 2019), 140.

. Urbain, L’archipel des morts, 25; Jeudy, Conte de la mére morte, 80; Spaemann, Personen.

Versuche iiber den Unterschied zwischen “etwas” und “jemand,” 173-4.

. Laurens, Cet absent-la, 15, 19.

. Peter Singer, Pushing Time Away: My Grandfather and the Tragedy of Jewish Vienna

(London: Granta, 2003), frontpiece. . Singer, Pushing Time Away, 243.

. Singer, Pushing Time Away, 11, 243.

. Note that Singer has this as a question. He asks “Why should I be so concerned

about my ancestors?” Singer, Pushing Time Away, 10.

John Rawls, Political Liberalism, Expanded Edition (New York: Columbia University

Press, 2005), 12.

Jacqueline de Romilly, Le tenps dans la tragédie grecque (Paris: Vrin, 1995), 11, 14-15.

Aeschylus, “Agamemnon,” 570. Aeschylus, “Libation-Bearers;’ in Aeschylus, ed. and trans. Alan H. Sommerstein, vol. 2,

Aeschylus: Oresteia, Loeb Classical Library (Cambridge, MA: Harvard University

Press, 2008), 61-5.

Aeschylus, “Libation-Bearers,” lines 315-17.

In Epicurus’ words, “Where death is, Iam not; where I am, death is not.” Quoted in

J. Jeremy Wisnewski, “What We Owe the Dead,” Journal of Applied Philosophy 26, no. 1

(2009): 55. The Erinyes (Furies) were originally believed to be concerned with crimes and ven-

geance within a family, and with matricide in particular. Their more general function

is to ensure that justice is done. On this and related roles see Andrew L. Brown, “The

Erinyes in the Oresteia: Real Life, the Supernatural, and the Stage,” The Journal of Hel-

lenic Studies 103 (1983): 28; Robert Parker, Miasma: Pollution and Purification in Early

Greek Religion (Oxford: Clarendon Press, 1983), 107; Ernst Wiist, “Erinys,’ in Pau-

lys Realencyclopddie der classischen Altertumswissenschaft, ed. Georg Wissowa, Wilhelm Kroll and Karl Mittelhaus, vol. 8, Supplementband (Stuttgart: Alfred Druckenmiiller,

1956), 87; Clémence Ramnoux, La nuif et les enfants de la nuit dans la tradition grecque

(Paris: Gallimard, 1959), 148; Neil J. Sewell-Rutter, Guilt by Descent: Moral Inheri-

tance and Decision Making in Greek Tragedy (Oxford: Oxford University Press, 2007),

84 note 21; Jane Case, “Apollo and the Erinyes in the Electra of Sophocles,” The

Classical Review 16, no. 4 (May 1902): 199; Petr B.R. Forbes, “Law and Politics in

the Oresteia?’ The Classical Review 62, no. 3/4 (December 1948): 100; Keith Sidwell,

“Purification and Pollution in Aeschylus’ Bumenides;’ Classical Quarterly 46 (New

Series), no. 1 (1996): 57; Alan H. Sommerstein, “Introduction,” in Aeschylus Eumen-

ides, ed. Alan H. Sommerstein, Cambridge Greek and Latin Classics (Cambridge:

Cambridge University Press, 1989), 6-12.

For an account of varied readings of Aeschylus’s Oresteia on justice see Frangois Ost,

Raconter la loi. Aux sources de Vimaginaire juridique (Paris: Odile Jacob, 2004), 91-144.

Philip Vellacott, “Has Good Prevailed? A Further Study of the Oresteia,” Harvard

Studies in Classical Philology 81 (1977): 117.

See relatedly Frangois Jouan, “L’évocation des morts dans la tragédie grecque,” Revue

de l’histotre des Religions 198, no. 4 (1981): 417.

Diego Lanza, “Le temps de l’émotion tragique. Malaise et soulagement,” Métis.

Anthropologie des mondes grecs anciens 1-2 (1988): 21. Héléne Cixous, La ville parjure ou le réveil des Erinyes (Paris: Thédtre du Soleil, 1995), 20; Héléne Cixous and Bernadette Fort, “Theatre, History, Ethics: An Interview

23.

24. 25.

26,

27.

28.

29.

39,

Doing justice to the dead. 123

with Héléne Cixous on The Perjured City, or the Awakening of the Furies” i History 28, no. 3 (Summer 1997): 445. gone Nee en

. Aeschylus, “Fragment 266,” in Aeschylus, ed. and trans. Alan H. Sommerstein, vol. 3 Aeschylus: Fragments, Loeb Classical Library (Cambridge, MA: Har iversi Press, 2008), 266-7. The fragment concerns Agate vieltion of Heat deal bak (liad 24: 105£f). See also Odette Touchefeu and Yves Touchefeu, “L’ humiliation d’Hector,” Métis. Anthropologie des mondes grecs anciens 5, no. 1-2 (1990): 113-15: Mary Whitlock Blundell, Helping Friends and Harming Enemies: A Study in Sophocles and Greek Ethics (Cambridge: Cambridge University Press, 1989), 55-6. On the

ancient Greek understanding of the bodies of the dead see Nicole Loraux, “Un absent de histoire? [Le corps dans l"historiographie thucydidéenne],” Metis. Anthro-

pologie des mondes grecs anciens 12 (1997): 223-67. Aeschylus, “Agamemnon,” lines 567-70. Aeschylus, “Fragment 266,” 266-7.

Aeschylus, “Libation-Bearers,” lines 315-18.

Aeschylus, “Libation-Bearers,” lines 324-8. Aeschylus, “Agamemnon,” line 1279. See Parker, Miastna, 107, citing Plato’s, Laws 865d~—e, 872e, 873a.

Anne Pippin Burnett, Revenge in Attic and Later Tragedy (Berkeley: University of Califor-

nia Press, 1998), 2; Jean Hampton, “An Expressive Theory of Retribution,” in Retribu- tivism and Its Critics, Papers of the Special Nordic Conference, University of Toronto,

June 25-27, 1990, Canadian Section of the International Society for Philosophy of Law and Social Philosophy (Stuttgart: Franz Steiner, 1992), 18; Sarah Iles Johnston, Restless Dead: Encounters between the Living and the Dead in Ancient Greece (Berkeley: University of California Press, 1999), 151; Erwin Rohde, Psyche. Seelencult und Unsterblichkeitsglaube der Griechen, Third Edition (Tiibingen and Leipzig: J. C. B. Mohr, 1903), 262, 267; La

vengeance, Etudes d’ethnologie, d’histoire et de philosophie, ed. Gérard Courtois, vol. 4, La vengeance dans la pensée occidentale (Paris: Editions Cujas, 1984), 104.

. Aharon Appelfeld, The Iron Tracks, translated by Jeffrey M. Green (New York:

Schocken, 1998), 9, 195.

. David Grossman, Falling Out of Time, translated by Jessica Cohen (New York: Alfred

A. Knopf, 2014), 84-5. . Gustave Le Bon writes “the power of the dead must not be too tyrannical because not

being able to progress they tend to paralyze progress.” Quoted in Urbain, Larchipel des morts, 241.

. Aeschylus, “Libation-Bearers,” line 886.

. Aeschylus, “Agamemnon,” lines 1338-43.

. Aeschylus, “Agamemnon,” 163 note 286.

. Aeschylus, “Libation-Bearers,” lines 403-4.

. Michael Gagarin, Aeschylean Drama (Berkeley: University of California Press, 1976), 70.

. Karl Otfried Miiller, Aeschylus Eumeniden (Gottingen: Dieterich, 1833), 115; Jonas

Grethlein, Asyl und Athen, Die Konstruktion kollektiver Identitat in der griechischen Tragédie (Stuttgart: J. B, Metzler, 2003), 220, 221 note 78, 222-3 note 85; Gaga- tin, Aeschylean Drama, 58; Richard Seaford, “Historicizing Tragic Ambivalence: The

Case of Athena’s Note,” in History, Tragedy, Theory: Dialogues on Athenian Drama, ed.

Barbara Goff (Austin: University of Texas Press, 1995), 212.

Grethlein, Asyl und Athen. Die Konstruktion kollektiver Identitit in der griechischen Tragédie, 222, 223 note 78. Cf. Alan H. Sommerstein, “Commentary,” in Aeschylus

Eumenides, ed. Alan H. Sommerstein, Cambridge Greek and Latin Classics (Cam- bridge: Cambridge University Press, 1989), 275-8. On the Oresteia, tragedy and

democracy see J. Peter Euben, “Justice and the Oresteia,” American Political Science

Review 76, no. 1 (March 1982): 22-33; J. Peter Euben, The Thagedy of Political The-

ory (Princeton: Princeton University Press, 1990); Elizabeth K. Markovits, Future

124 Doing justice to the dead

40.

41. 42.

43.

44.

45.

46.

47. 48.

49.

50.

51.

freedons, Intergenerational justice, democratic theory, and ancient greek tragedy and comedy

(New York: Routledge, 2018). On how the Greeks understood their myths see Paul

Veyne, Les Grecs ont-ils cru a leurs mythes? (Paris: Seuil, 1983).

Sewell-Rutter, Guilt by Descent: Moral Inheritance and Decision Making in Greek Trag-

edy, 130-1; Michéle Simondon, La mémoire et l'oubli dans la pensée grecque jusq’a la fin

du Ve siécle avant J.-C. (Paris: Les Belles Lettres, 1982), 197.

Ramnoux, La nuit et les enfants de la nuit, 113.

Lattimore’s translation in Aeschylus, The Complete Greek Tragedies: Aeschylus, ed.

David Grene, Richmond Lattimore, and Glenn W. Most, vol. 2, The Libation Bearers,

translated by Richmond Lattimore, Third Edition (Chicago: University of Chicago

Press, 2013), line 320.

Attributed to the Brooklyn-Budapest Painter. The artist’s name is unknown. For

simplicity’s sake I will refer to this nestoris throughout as the “Lucanian vase.” For

commentary on this vase see “Erinys,” in Lexicon Iconographicum Mythologiae Classicae

(LIMC), ed. John Boardman and et al., vol. 3.1 (Zurich and Munich: Artemis, 1986),

600; G. Schneider-Herrmann, Red-Figured Lucanian and Apulian Nestorides and Their

Ancestors, Allard Pierson Series. Studies in Ancient Civilization, vol. 1 (Amsterdam:

Allard Pierson Museum, 1980), 44, figure 57; Anneliese Kossatz-Deissmann, Dramen

des Aischylos auf westgriechischen Vasen, Schriften zur antiken Mythologie (Heidel-

berger Akademie der Wissenschaften Kommission fiir antike Mythologie), vol. 4

(Mainz am Rhein: Philipp von Zabern, 1978), 111-12; Lilian Dreger, “Das Bild im

Spiegel. Ein Beitrag zur Geschichte der antiken Malerei” (Ph. D. diss., Ruprecht-

Karls-~Universitat. Heidelberg, 1940), 13; Adolf Rosenberg, Die Erinyen. Ein Beitrag

zur Religion und Kunst der Griechen (Berlin: Gebriider Borntraeger, 1874), 51-2;

Johannes Overbeck, Die Bildwerke zum thebischen und troischen Heldenkreis (Braunsch-

weig: C. A. Schwetschke & Sohn, 1853), 715-16.

André Laks and Glenn W. Most, “A Provisional Translation of the Derveni Papy-

rus,” in Studies on the Derveni Papyrus, ed. André Laks and Glenn W. Most (Oxford:

Clarendon Press, 1997), 11, 94 column IV; Aeschylus, “Eumenides,” in Aeschylus, ed.

and trans. Alan H. Sommerstein, vol. 2, Aeschylus: Oresteia, Loeb Classical Library

(Cambridge, MA: Harvard University Press, 2008), line 318.

Sewell-Ruutter, Guilt by Descent: Moral Inheritance and Decision Making in Greek Trag-

edy, 80; Brown, “The Erinyes in the Oresteia: Real Life, the Supernatural, and the

Stage,” 18, 20-2, 24-5. An eidolon is not necessarily unreal, but can be an image or

shadow of something. See Suzanne Said, “Deux noms de l'image en grec ancien:

idole et icéne”” Comptes-rendus des séances de l’ Académie des Inscriptions et Belles-Lettres

131, no. 2 (1987): 309-30; Jean-Pierre Vernant, “Figuration et image,” in Entre mythe

et politique (Paris: Seuil, 1996), 378-95. Julian Barnes, Levels of Life (New York: Alfred A. Knopf, 2013), 111.

Nicole Loraux, La voix endeuillée, Essai sur la tragédie grecque (Paris: Gallimard, 1999), 81.

Winfried Herrmann, “Spiegelbild im Spiegel. Zur Darstellung auf frtihlukanischen

Vasen,” Wissenschaftliche Zeitschrifte der Universitat Rostock 17 (Festschrift Gottfried

von Liicken) (1968): 669; Kossatz-Deissmann, Dramen des Aischylos auf westgriechischen

Vasen, 111; Dreger, “Das Bild im Spiegel. Ein Beitrag zur Geschichte der antiken

Malerei,’ 96.

Jean-Pierre Vernant, “De la présentification de l’invisible 4 imitation de l’apparence,”

Rencontres de Ecole du Louvre (Image et Signification) (February 1983): 36.

Loraux, La voix endeuillée. Essai sur la tragédie grecque, 155 note 56. quoting Lanza, “Le

temps de l’émotion tragique. Malaise et soulagement,” 21. See also Jane E. Harrison,

“Delphika.-(A) The Erinyes. (B) The Omphalos,” The Journal of Hellenic Studies 19

(1899): 207; Eric R. Dodds, The Greeks and the Irrational (Berkeley: University of

California Press, 1951), 21; Reginald P. Winnington-Ingram, Sophocles: An Interpre-

tation (Cambridge: Cambridge University Press, 1980), 219.

Jean Améry, Jenseits von Schuld und Siihne. Bewéltigungsversuche eines Uberwiiltigen

(Stuttgart: Klett-Cotta, 1977), 116, 123; Antoine Garapon, “La justice et Vinversion

52.

53.

54.

55. 56.

57.

58.

59.

60.

61.

62.

63. 64.

65.

66.

67,

Doing justice to thedead 125

morale du temps,” in Pourquoi se souvenir? ed. Francoise Barret-Ducrocq (Paris: Gras-

set, 1998), 113. Cixous, La ville parjure ou le véveil des Erinyes, 72.

Sophocles, Sophocles, vol. 1, Electra, translated by Hugh Lloyd-Jones, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1997), lines 138f, 143.

Johnston, Restless Dead: Encounters between the Living and the Dead in Ancient Greece, 121, 127; Sarah Mace, “Why the Oresteia’s Sleeping Dead Won't Lie, Part I: Agamem- non,’ The Classical Journal 98, no. 1 (October~November 2002): 47; Héléne Cixous,

“Le coup,” in Thédtre du Soleil. Eschyle. L’ Orestie. Les Euménides (Paris: Théatre du Soleil, 1992), 11. Karl Schlégel, Terror und Tiaurn. Moskau 1937 (Munich: Carl Hanser, 2008), 18. Joel Feinberg, The Moral Limits of the Criminal Law, vol. 1, Harm to Others (Oxford:

Oxford University Press, 1984), 79; Ernest Partridge, “Posthumous Interests and

Posthumous Respect,” Ethics 91,.no. 2 January 1981): 244, 248; Joan C. Callahan, “On Harming the Dead,” Ethics 97 (January 1987): 341-2, 346.

See relatedly Jeffrey M. Blustein, The Moral Demands of Memory (Cambridge: Cam- bridge University Press, 2008), 221; Bob Brecher, “Our Obligation to the Dead,”

Journal of Applied Philosophy 19, no. 2 (2002): 114-14, 117. As I wrote in the Pref

ace, throughout this study I follow Margaret Walker's guidance on the language of restoration (and apply it as well to phrases such as “community of justice,” “belong- ing,” “embedded in” and so forth): “The terminology of “restoration” is sometimes

criticized because it implies return to a condition of relationship that either did not

exist or was unacceptable. I propose that we understand “restoration” in all contexts

as normative: “restoration” refers to repairs that move relationships in the direction of

becoming morally adequate, without assuming a morally adequate status quo ante.” Margaret Urban Walker, “Restorative Justice and Reparations,” Journal of Social Phi-

losophy 37, no. 3 (Fall 2006): 384. For an argument about the importance of institutions in this see Peter A. French,

Responsibility Matters (Lawrence: University of Kansas Press, 1992), 138-40. I discuss this example in W. James Booth, Communities of Memory: On Witness, Iden-

tity, and Justice (Ithaca, NY: Cornell University Press, 2006), 53-4, 58, 60. Quoted in Eric Conan and Henry Rousso, Vichy, un passé qui ne passe pas (Paris: Gal-

limard, 1996), 60-1. In particular, the dedication of a plaque at the Vél d’Hiv, site of the 1942 mass depor-

tation of Parisian Jews to the extermination camps. See Blandine Kriegel, “Vichy, la République et la France,” Le Monde (Paris), Septem-

ber 8, 1995, 14; Blandine Kriegel, “Pardon et crime d’état,” L’Histoire, November

1995, 78. Kriegel allows that contemporary France does have an obligation to evoke

and criticize this past because the Vichy regime issued from a legal vote of the repub- lican Assembly. See Conan and Rousso, Vichy, un passé qui ne passe pas, 91.

Jurgen Habermas, “Warum ein ‘Demokratiepreis’ fiir Daniel J. Goldhagen? Eine Lau-

datio,” Die Zeit, March 14, 1997, April 18, 2019 <www.zeit.de/1997/12/historie.

txt.19970314.xml>. Jeffrey M. Blustein, The Moral Demands of Memory (Cambridge: Cambridge Univer-

sity Press, 2008), 221. Aeschylus, The Libation Bearers, lines 500-5. Lattimore’s translation attributes this speech to Orestes, and notes the difficulties with the transmitted text. Aeschylus,

The Libation Bearers, 168-9. Sommerstein, in his Loeb edition, also comments on the

oddity of this part of Libation-Bearers. Aeschylus, “Libation-Bearers,” 276—7 note 112. The Oxford Classical Texts edition (Greek-only texts) has Electra speaking these

lines. Aeschylus, “Choephoroi,” in Septem Quae Supersunt Tragodias, ed. Denys Page (Oxford: Clarendon Press, 1972), line 505.

Sommerstein’s translation. Aeschylus, “Libation-Bearers,’ 506-7. Aeschylus occa-

sionally used the image of nets in the context of Hades, death, and ruin. Aeschylus,

126

69.

70.

71,

73.

74, 75.

83.

84.

85.

86.

Doing justice to the dead

“Agamemnon,” line 1115; Aeschylus, Aeschylus: Works in Tivo Volumes, ed. and trans. Herbert Weir Smyth, vol. 1, Prometheus Bound, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1973), line 1078. Clytaemestra describes using a net to render Agamemnon (like a netted fish, she says) unable to escape or to defend

himself as she slaughters him. Aeschylus, “Agamemnon,” lines 1381-3. Perhaps the net both saves the unjustly dead and ensures the fate of the unjust.

. This includes those who ought to have had that standing but were unjustly denied it. oe

Wiist, “Erinys,’ 85; Hugh Lloyd-Jones, “Erinyes, Semmnai Theai, Eumenides,” in “Owls to Athens”: Essays on Classical Subjects Presented to Sir Kenneth Dover, ed. Eliza~

beth M. Craik (Oxford: Clarendon Press, 1990), 206.

Aeschylus, “Eumenides,” lines 316ff, 382-3; Johnston, Restless Dead: Encounters

between the Living and the Dead in Ancient Greece, 142-3; Winnington-Ingram, Sopho-

cles: An Interpretation, 207. Aeschylus, “Agamemnon,” 142 note 254. See also Lloyd-Jones, “Erinyes, Semnai

Theai, Eumenides,’ 205.

. Johnston, Restless Dead: Encounters between the Living and the Dead in Ancient Greece, 273; Winnington-Ingram, Sophocles: An Interpretation, 207. Aeschylus writes that Zeus forbids bringing men back whole from the dead. Asclepius was killed by Zeus for doing just that. Aeschylus, “Agamemnon,” lines 1023-4 note 217.

Wiist, “Erinys,” 87; Laks and Most, “A Provisional Translation of the Derveni Papy- rus.” 11. And cf. Case, “Apollo and the Erinyes in the Electra of Sophocles,” 196.

Aeschylus, “Eumenides,” lines 318-19. Goldhill notes the importance in the Oresteia of the distinction between dikephoros

(avenger) and dikastes (judge), and the different senses of justice that underpin them.

Simon Goldhill, Reading Greek Tiagedy (Cambridge: Cambridge University Press,

1986), 22, 334. . Johnston, Restless Dead: Encounters between the Living and the Dead in Ancient Greece, 255.

. Aeschylus, “Agamemnon,” line 1190.

. Aeschylus, “Agamemnon,” 142. Note 254 commenting on line 1190.

. Aeschylus, “Eumenides,” lines 2108.

. Gagarin, Aeschylean Drama, 65.

. Aeschylus, “Agamemnon,” line 1433.

. Aeschylus, “Libation-Bearers,” lines 283-4, 924-5; Aeschylus, “Agamemnon,” lines

1433ff. See also Brown, “The Erinyes in the Oresteia: Real Life, the Supernatural, and the Stage,” 28; Dodds, The Greeks and the Irrational, 21 note 37; Karl Reinhardt,

Aischylos als Regisseur und Theologe (Bern: Francke, 1949), 147; Gustave Glotz, La

solidarité de la famille dans le droit criminel en Greéce (Paris: Albert Fontemoing, 1904; reprint, New York: Arno Press, 1973), 233-4. For an argument that in the Eumenides

the Furies’s role changes and becomes more generally concerned with homicide see

Maximilian Braun, Die Eumeniden des Aischylos und der Areopag, Classica Monacensia,

vol, 19 (Tiibingen: Gunter Narr, 1998), 194-5; Aeschylus, “Eumenides,” line 421. Sewell-Rutter, Guilt by Descent: Moral Inheritance and Decision Making in Greek Trag-

edy, 79-80, 90 note 45; Charles C. Chiasson, “The Athenians and Time in Aeschy-

lus’ Eumenides”” The Classical Journal 95, no. 2 (December—January 1999-2000): 140; Brown, “The Erinyes in the Oresteia: Real Life, the Supernatural, and the Stage,” 13,

22, 24-5; Rosenberg, Die Erinyen. Ein Beitrag zur Religion und Kunst der Griechen, 11.

Aeschylus, “Libation-Bearers,” 120. Electra and Orestes appeal to Agamemnon to “send justice.’ Aeschylus, “Libation-

Bearers,” lines 456, 495, 4976 Glotz, La solidarité de la famille dans le droit criminel en Grece, 73; Sommerstein, “Introduction,” 20. And in the Eumenides, Clytaemes-

tra awakens the slumbering Furies to continue their pursuit of Orestes. Aeschylus, “Eumenides,” lines 115-16, 122ff.

For a foundational study of the legal dimensions of the family’s unity in the classical

Greek world see Glotz, La solidarité de la famille dans le droit criminel en Grece.

91.

92. 93.

94.

95.

96.

97,

98.

99,

100.

101.

Doing justice to the dead 127

. See Goldhill, Reading Greek Tragedy, 24, 80, 82-5; Evangelos Petrounias, Funktion und Thematik der Bilder bei Aischylos, Hypomnemata, vol. 48 (Gottingen: Vandenhoeck & Ruprecht, 1976), 141; Ost, Raconter la loi. Aux sources de Pimaginaire juridique, 115.

. See Goldhill, Reading Greek Tiagedy, 79-80, 82, 84-5. For an overview of philia see Jean Alaux, “Remarques sur la filia Labdacide dans Antigone et CEdipe 4 Colone,” Metis. Anthropologie des mondes grecs anciens 7, no. 1-2 (1992): 209-29,

. Goldhill, Reading Greek Tragedy, 82.

. Aristotle, The Politics, translated by Harris Rackham, Loeb Classical Library (Cam- bridge, MA; William Heinemann, 1932), 1262b1ff. Although the word philia itself

does not appear in Antigone (cognates abound, of course), Creon (as Jean Alaux notes)

is insisting on the primacy of the philia of the political community over that of family. Alaux, “Remarques sur la filia Labdacide dans Antigone et (Edipe 4 Colone,” 211.

Sophocles, Sophocles: Works in Two Volumes, vol. 2, Antigone, translated by Hugh Lloyd-Jones, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1994), line 94. Gagarin, Aeschylean Drama, 65; Goldhill, Reading Greek Tragedy, 82-4. Aristotle, “Eudemian Ethics,” translated by Harris Rackham, in The Athenian Consti-

tution: The Eudemian Ethics: On Virtues and Vices, Loeb Classical Library (Cambridge,

MA: William Heinemann, 1952), 1237a; Aristotle, “Poetics,” in Aristotle Poetics:

Longinus on the Sublime: Demetrius on Style, ed. Stephen Halliwell, Loeb Classical Library (Cambridge, MA: William Heinemann, 1995), 1452a29ff Goldhill, Reading

Greek Tragedy, 84-5.

Creon’s decision to leave Polynices’ body unburied is an example of this, as is the

practice, ancient and modern, of denying perpetrators of great crimes a place in the community’s collective memory.

Gagarin, Aeschylean Drama, 71-2, 78; Philip Vellacott, The Logic of Tragedy: Morals and Integrity in Aeschylus’ Oresteia (Durham, NC: Duke University Press, 1984), 44.

Ellison’s Invisible Man tells us that memory can help give the historically marginalized and oppressed a place in that mesh denied them in their own lifetimes.

On the renaissance of retributivist theories see R. Antony Duff, Punishment, Com-

munication, and Community (Oxford: Oxford University Press, 2001), 7. Typically the

focus is not on the victim and what is owed her but on the defendant receiving his just desert.

Danielle S. Allen, The World of Prometheus: The Politics of Punishing in Democratic Ath-

ens (Princeton: Princeton University Press, 2000), 18-19; David Cohen, “Theories of Punishment,” in The Cambridge Companion to Ancient Greek Law, ed. David Cohen

and Michael Gagarin (Cambridge: Cambridge University Press, 2005), 172.

Glotz, La solidarité de la famille dans le droit criminel en Gréce, 46, 60, 76, 411. See also

Douglas M. MacDowell, Athenian Homicide Law in the Age of the Orators (Manchester:

Manchester University Press, 1963), 123; Jean-Luc Nancy, “Postface,” in Vengeance? (Robert Antelme) (Paris: Hermann, 2010), 40-1. Sophocles, Electra, line 1391.

“The origin of law, at least that which we call criminal law, is to be found in the

abandonment of vengeance.” Nancy, “Postface,” 39.For related readings of the play see Anthony J. Podlecki, The Political Background of Aeschylean Tragedy, Second Edi-

tion (London: Bristol Classical Press, 1999), 63, 77-8, 80-1; David D. Phillips,

Avengers of Blood: Homicide in Athenian Law and Custom from Draco to Demosthenes, Historia. Zeitschrift ftir Alte Geschichte. Einzelschriften, vol. 202 (Stuttgart: Franz Steiner, 2008), 29; Christopher Pelling, Literary Texts and the Greek Historian (London and New York: Routledge, 2000), 176; Thomas G. Rosenmeyer, The Art of Aeschy-

lus (Berkeley: University of California Press, 1982), 338; Seaford, ““Historicizing

Tragic Ambivalence: The Case of Athena’s Note,’ 208; Braun, Die Eumeniden des Aischylos und der Areopag, 201; Paul Ricoeur, “Gedachtnis-Vergessen-Geschichte,”

in Historische Sinnbildung: Problemstellungen, Zeitkonzepte, Wahrnehmungshorizonte,

128

102.

103.

104.

Doing justice to the dead

Darstellungsstrategien, ed. Klaus E. Miller and Jérn Riisen (Hamburg: Rowolt, 1997),

452; Benjamin Daube, Zu den Rechtsproblemen in Aischylos’ Agamemnon (Zurich and

Leipzig: Max Niehans Verlag, 1939), 60, 118, 157 note; Sarah Mace, “Why the

Oresteia’s Sleeping Dead Won’t Lie, Part II: Choephoroi and Eutenides,” The Classical

Journal 106, no. 1 (October-November 2004): 58; Ramnoux, La nuit et les enfants

de la nuit, 154; Dodds, The Greeks and the Irrational, 40; Forbes, “Law and Politics

in the Oresteia;’? 99-101, 103; Marcel Hénaff, Le prix de la vérité, Le don, Pargent, la

philosophie (Paris: Seuil, 2002), 296; Colin W. MacLeod, “Politics and the Oresteia,”

The Journal of Hellenic Studies 102 (1982): 135; Markovits, Future Freedoms, 143.

Demosthenes, “XXIll: Against Aristocrates,” translated by James Herbert Vince, in

Demosthenes: Orations, vol. 3, Orations XXI-XXVI (Cambridge, MA: Loeb Classical

Library, 1935), 74 (265); Aeschylus, “Eumenides,” lines 81-2.

On the sublimation thesis, and for a warning against the Whiggish reading, see Ost,

Raconter la lot. Aux sources de Vimaginaire juridique, 94, 124, 126, 129; Pierre Judet de la

Combe, “Rationalisation du droit et fiction tragiques: les Euménides,’ in La naissance

de la raison en Grece, ed. Jean-Francois Mattéi (Paris: Presses Universitaires de France,

1990), 270. Other elements of this alternative interpretation, and a calling into ques-

tion of the justice of the final scene, can be found in: Allen, The World of Prometheus:

The Politics of Punishing in Democratic Athens, 19-20; Braun, Die Eumeniden des Ais-

chylos und der Areopag, 158 note 598; Cixous, “Le coup.”; Cixous and Fort, “The-

atre, History, Ethics: An Interview with Héléne Cixous on The Perjured City, or the

Awakening of the Furies?’ 429; David Cohen, Law, Violence, and Community in Classical

Athens (Cambridge: Cambridge University Press, 1995), 3-4, 17-18; David Cohen,

“The Theodicy of Aeschylus: Justice and Tyranny in the ‘Oresteia’,” Greece and Rome

33, no. 2 (October 1986): 138-9; Gagarin, Aeschylean Drama, 76, 85; Simon Gold-

hill, Language, Sexuality, Narrative: The Oresteia (Cambridge: Cambridge University

Press, 1984), 48; Grethlein, Asyl und Athen. Die Konstruktion kollektiver Identitat in der

griechischen Tragddie, 232-3, 234-5; Jonas Grethlein, The Greeks and Their Past: Poetry,

Oratory and History in the Fifth Century BCE (Cambridge: Cambridge University

Press, 2010), 103; Hanna M. Roisman, “The Opening of the Second Stasimon in

Aeschylus’ Eumenides,’ Eranos 87 (1988): 8-9; Rosenmeyer, The Art of. Aeschylus, 343,

350, 356; Vellacott, “Has Good Prevailed? A Further Study of the Oresteia”, Vel-

lacott, The Logic of Tragedy: Morals and Integrity in Aeschylus’ Oresteia, vii, 32, 44. CE

Seaford, “Historicizing Tragic Ambivalence: The Case of Athena’s Note,” 208, 215;

Phillips, Avengers of Blood, 29 note 52; Martha C, Nussbaum, Anger and Forgiveness:

Resentment, Generosity, Justice (Oxford: Oxford University Press, 2016), 2-4, 169-72.

Daube, Zu den Rechtsproblemen in Aischylos’ Agamemnon, 118, Rohde, Psyche. Seelen-

cult und Unsterblichkeitsglaube der Griechen, 262, 265, 267; Suzanne Said, “La tragédie

de la vengeance,” in La vengeance. Etudes d’ethnologie, d’histoire et de philosophie, ed.

Gérard Courtois, vol. 4, La vengeance dans la pensée occidentale (Paris: Editions Cujas,

1984), 48, 54-5; John E. Jackson, L’ambiguité tragique. Essai sur une forme du tragique au

thédtre (Paris: José Corti, 2008), 33-5, Ost, Raconter la loi. Aux sources de l’imaginaire

juridique, 129, 131-2. On Athenian homicide law as a forum for private, vengeance-

seeking initiatives on the part of the victim’s family see MacDowell, Athenian Homi-

cide Law in the Age of the Orators, 1, 141; David Cohen, “Crime, Punishment, and the

Rule of Law in Classical Athens,” in The Cambridge Companion to Ancient Greek Law,

ed, David Cohen and Michael Gagarin (Cambridge: Cambridge University Press,

2005), 219; Stephen Charles Todd, The Shape of Athenian Law (Oxford: Clarendon,

1993), 272; Phillips, Avengers of Blood, 14, 23, 78, 237; Margaret Visser, “Vengeance

and Pollution in Classical Athens,” Journal of the History of Ideas 45, no. 2 (April-June

1984): 194-5; Burnett, Revenge in Attic and Later Tragedy, 56; Braun, Die Eumeniden

des Aischylos und der Areopag, 199-200; Allen, The World of Prometheus: The Politics of

Punishing in Democratic Athens, 18-19, 21; Gagarin, Aeschylean Drama, 68, 71; Greth-

lein, Asyl und Athen. Die Konstruktion kollektiver Identitdt in der griechischen Tragédie,

234-6, 237-8.

105.

106.

107.

108. 109,

110.

111.

113.

114,

115,

Doing justice to the dead 129

MacDowell, Athenian Homicide Law in the Age of the Orators, 1, 8; Burnett, Revenge in

Attic and Later Tragedy, xvi, 2, 54; Phillips, Avengers of Blood, 20, 62; Miiller, Aeschylus

Eumeniden, 127; Virginia J. Hunter, Policing Athens: Social Control in the Attic Lawsuits

420-320 B.C. (Princeton: Princeton University Press, 1994), 129; Cohen, “Theo-

ries of Punishment,” 171.

Antiphon, “The Third Tetralogy,” translated by KJ. Maidment, in Minor Attic Orators,

Antiphon, Andocides, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1941), 127-8.

MacDowell, Athenian Homicide Law in the Age of the Orators, 3, 141; Cohen, “Crime,

Punishment, and the Rule of Law in Classical Athens,” 215, 224, 228; Cohen, “The- ories of Punishment,” 172; Burnett, Revenge in Alttic and Later Tragedy, 54; Regi-

nald P, Winnington-Ingram, “A Religious Function of Greek Tragedy: A Study in

the Oedipus Coloneus and the Oresteia,’ The Journal of Hellenic Studies 74 (1954): 23; Gérard Courtois, “Le sens et la valeur de la vengeance, chez Aristote et Séneque,” in

La vengeance. Etudes d’ethnologie, d’histoire et de philosophie, ed. Gérard Courtois, vol. 4, La vengeance dans la pensée occidentale (Paris: Editions Cujas, 1984), 101.

Allen, The World of Prometheus: The Politics of Punishing in Democratic Athens, 23-4.

On the Erinyes’ concern only for murder among blood-relatives see Aeschylus,

“Eumenides,” lines 210ff. On the strategic nature of Athena’s new legal justice see Combe, “Rationalisation du droit et fiction tragiques: les Euménides;’ 270. For com-

mentary on these ambiguities see Combe, “Rationalisation du droit et fiction tragiques:

les Euménides,’ 268; Feinberg, Harm to Others, 95; Cixous, “Le coup,” 9; Ost, Raconter la loi, Aux sources de Vimaginaire juridique, 115.

eeonge P Fletcher, Basic Concepts of Criminal Law (Oxford: Oxford University Press, 998), 80.

Gideon Hausner, “The Attorney General’s Opening Speech,” in The Trial of Adolf

Eichmann: Record of Proceedings, vol. 1 (Jerusalem: State of Israel and Ministry of Jus- tice, 1992—1994), 62.

. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York:

Penguin, 1992), 260-1. Arendt’s critique of Hausner and of the Eichmann trial as

a whole goes considerably beyond the facet mentioned here. There is an extensive literature on this and related aspects of Arendt’s analysis of the trial. For a recent

study see Lawrence Douglas, The Memory of Judgment: Making Law and History in

the Trials of the Holocaust (New Haven: Yale University Press, 2001), 150ff. Similar

criticisms of efforts to make the (dead) victims central to a legal proceeding were ventured during the 1997-1998 trial of Maurice Papon. See Eric Conan, Le procés

Papon, Un journal d’audience (Paris: Gallimard, 1998), 36-7, 102; Yan Thomas, “La

vérité, le temps, le juge et Phistorien,’ Le Débat 102 (November-December 1998):

26; Antoine Garapon, Des crimes qu’on ne peut ni punir mt pardonner, Pour une justice internationale (Paris: Odile Jacob, 2002), 168.

John Gardner, “Crime: In Proportion and in Perspective,” in Offenses and Defenses:

Selected Essays in the Philosophy of Criminal Law (Oxford: Oxford University Press, 2007), 214. Gardner, “Crime: In Proportion and in Perspective,’ 213, 216, 235-6, 238; Hénaff, Le prix de la vérité, 297; Sandra E. Marshall, “Victims of Crime: Their Station and Its

Duties,” in Managing Modernity: Politics and the Culture of Control, ed, Matt Matrav-

ers (New York: Routledge, 2005), 109; Alexander McCall Smith, “Time, Guilt

and Forgiveness,” in Lethe’s Law: Justice, Law and Ethics in Reconciliation, ed. Emilios

Christodoulidis and Scott Veitch (Oxford: Hart, 2001), 55; Etienne Jaudel, Justice sans chdtiment. Les commissions Vérite-Réconciliation (Paris: Odile Jacob, 2009), 46-8;

Gérard Courtois, “La vengeance, du désir aux institutions” in La vengeance. Etudes

d’ethnologie, d’histoire et de philosophie, ed. Gérard Courtois, vol. 4, La vengeance dans la pensée occidentale (Paris: Editions Cujas, 1984), 10.

Cixous argues that this displacing of the victim is an undermining of justice. See

Cixous, La ville parjure ou le réveil des Erinyes, 21, 26, 52-3; Cixous, “Le coup,” 7-8,

130 Doing justice to the dead

9-10, 13; Cixous and Fort, “Theatre, History, Ethics: An Interview with Héléne Cixous on The Perjured City, or the Awakening of the Furies,’ 429, 431, 442, 447.

. Fletcher, Basic Concepts of Criminal Law, 39, 80, 171; Antoine Garapon, L’dne portant

des reliques: essai sur le rituel judiciaire (Paris: Editions du Centurion, 1985), 194. . Francois Ost discusses the continued presence of these seemingly archaic concep-

tions of justice in modern criminal law practices. Ost, Raconter la loi, Aux sources de

Pimaginaire juridique, 94, 133. Much literature on the role of punishment in criminal law adopts this broadly instrumental approach. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, The Collected Works of Jeremy Bentham, ed.

H.L.A. Hart and J.H. Burns (Oxford: Oxford University Press, 1996), 74, 165ff;

Fletcher, Basic Concepts of Criminal Law, 30, 32-3, 35, 171; Garapon, L’dne portant

des reliques: essai sur le rituel judiciaire, 194; Cixous, “Le coup,” 13, Earlier accounts

of this kind can be found in Beccaria and as far back as Plato. See Susan Dimock,

‘Retributivism and Trust,” Law and Philosophy 16, no. 1 (1997): 37; Cohen, “Theo-

ries of Punishment,” 173-4. . R. Antony Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart, 2007), 176, 191; R. Antony Duff, et al., The Thal on Thal, vol. 3, Towards a Normative Theory of the Criminal Trial (Oxford: Hart, 2007), 3-5, 61-3, 86,

91, 134, 137. . Duff, Answering for Crime, 141. . Duff, et al., Towards a Normative Theory of the Criminal Trial, 9-10, 134, 137, 213-14;

Duff, Answering for Crime, 141-2; Duff, Punishment, Communication, and Commu-

nity, 60-1; Marshall, “Victims of Crime: Their Station and Its Duties,’ 110; Klaus

Giinther, “The Criminal Law of ‘Guilt’ as Subject of a Politics of Remembrance

in Democracies,” in Lethe’s Law: Justice, Law and Ethics in Reconciliation, ed. Emilios

Christodoulidis and Scott Veitch (Oxford: Hart, 2001), 13. . Garapon, “La justice et inversion morale du temps,’ 116-18, 122; Garapon, Des

crimes qu’on ne peut ni punir ni pardonner, 58, 199, 240, 250, 255-6. . Aristotle, “De Memoria et Reminiscentia,’ in Aristotle on Memory, ed. Richard Sor-

abji (Providence: Brown University Press, 1972), 449a9.

. Claude Lanzmann, Le lievre de Patagonie. Mémoires (Paris: Gallimard, 2009), 437, 526.

. Lanzmann, Le lievre de Patagonie. Mémoires, 509.

. Lanzmann, Le lidvre de Patagonie, Mémoires, 441. Here the living care for the dead by

making them present. Contrast that to Kerangal’s literary reflection on the living and the treatment of the dead’s remains. As I rernarked earlier, the title itself, “to repair

the living,” suggests a very different relationship between the living and the dead.

Maylis de Kerangal, Réparer les vivants (Paris: Folio, 2015). . Lanzmann in a 1986 public address at Yale, quoted in Patrice Maniglier, “Lanzmann philosophe. Introduction au corps-Shoah,” in Claude Lanzmana. Un voyant dans le

siécle, ed. Juliette Simont (Paris: Gallimard, 2017), 60. . Maniglier, ‘““Lanzmann philosophe. Introduction au corps~Shoah,” 65, 67, 75.

. See Antoine Garapon, “Préface,” in Réparer l’irréparable, Les réparations aux victimes devant la Cour pénale internationale (Paris: Presses Universitaires de France, 2009), ix; Garapon, “La justice et l'inversion morale du temps,’ 113, 115-18; Garapon, Lane

portant des reliques: essai sur le rituel judiciaire, 62~4. There is an excellent literature on

memory and justice. See for example: Mark Osiel, Mass Atrocity, Collective Memory

and the Law (New Brunswick, NJ: Transaction, 1997); Paul Ricoeur, La mémoire,

histoire, Voubli (Paris: Seuil, 2000); Martha Minow, Between Vengeance and Forgive-

ness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998); Thomas A. McCarthy, “Vergangenheitsbewéiltigung in the USA: On the Politics of the Memory of Slavery,” Political Theory 30, no. 5 (December 2002): 623-48; Thomas A.

McCarthy, “Coming to Terms with Our Past, Part II: On the Morality and Politics of Reparations for Slavery,” Political Theory 32, no. 6 (December 2004): 750~72; Jef-

frey M. Blustein, The Moral Demands of Memory; The Politics of Memory: Transitional

130.

131. 132.

133.

134,

135.

136.

137.

138.

139,

140. 141.

142.

143,

Doing justiceto the dead 131

Justice in Democratizing Societies, edited by Alexandra Barahona’ de: Brito, Carmen Gonzalez-Enriquez and Paloma Aguilar (Oxford: Oxford University Press; 2001); Lawrence Douglas, The Memory of Judgment: History, Memory, and the Law, edited by Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1999); Wole Soyinka, The Burden of Memory, the Muse of Forgiveness (Oxford: Oxford

University Press, 1999). . Relatedly see Spaemann, Personen. Versuche tiber den Unterschied zwischen “etwas” und

“Semand,” 172-3. Blustein, The Moral Demands of Memory, 257; Michel de Certeau, “Histoire et struc-

ture,” Recherches et débats 68 (1970): 169. Certeau, “Histoire et structure,’ 169.

Fletcher, Basic Concepts of Criminal Law, 38; David Cockburn, Other Times: Philo-

sophical Perspectives on Past, Present and Future (Cambridge: Cambridge University

Press, 1997), 153-5, 158-9, 297, 299, 317; Blustein, The Moral Demands of Memory,

238 note 95, 220-1.

See Thomas, “La vérité.” On amnesties in transitions to democracy see Raul Alfon-

sin, ““Never Again’ in Argentina,” Journal of Democracy 4, no. 1 January 1993):

15-19; Lawrence Weschler, A Miracle, a Universe: Settling Accounts with Torturers (New

York: Pantheon Books, 1990); Minow, Between Vengeance and Forgiveness, Ricoeur,

“Gedichtnis-Vergessen-Geschichte”; Carlos Santiago Nino, Radical Evil on Trial

(New Haven: Yale University Press, 1996). Relatedly, see Blustein on political for-

giveness and transitional measures to address the past. Jeffrey M. Blustein, Forgiveness

and Remembrance: Remembering Wrongdoing in Personal and Public Life (Oxford: Oxford

University Press, 2014), 140ff. Barbara Baum Levenbook, “Harming the Dead, Once Again,” Ethics 96 (October-

December 1985): 162~3; Feinberg, Harm to Others, 94-5; Partridge, “Posthumous

Interests and Posthumous Respect,” 260-1.

Urbain, L’archipel des morts, 25.

Tyler Cowen, “How Far Back Should We Go? Why Restitution Should Be Small,”

in Retribution and Reparation in the Transition to Democracy, ed. Jon Elster (Cambridge:

Cambridge University Press, 2006), 25; Antoine Garapon, “Préface,” in Justice sans

chatiment. Les commissions Véerite-Réconciliation (Paris: Odile Jacob, 2009), xii.

Garapon, Des crimes qu’on ne peut ni punir ni pardonner, 166.

Garapon, Des crimes qu’on ne peut ni punir ni pardonner, 161, 214, Christopher Kutz,

“Justice in Reparations: The Cost of Memory and the Value of Talk,” Philosophy &

Public Affairs 32, no. 3 (2004): 280. Michael Ridge, “Giving the Dead Their Due,” Ethics 114 (October 2003): 40;

Renée A. Hill, “Compensatory Justice: Over Time and between Groups,” Journal of

Political Philosophy 10, no. 4 (2002): 393-4; Kutz, “Justice in Reparations: The Cost

of Memory and the Value of Talk,” 284.

Fletcher, Basic Concepts of Criminal Law, 38. Antiphon, “The First Tetralogy,” translated by KJ. Maidment, in Minor Attic Orators,

Antiphon, Andocides, Loeb Classical Library (Cambridge, MA: Harvard University

Press, 1941), 2.1.3.

I discuss some of this in Booth, Communities of Memory: On Witness, Identity, and

Justice, 134-5.

Michel Zaoui, Mémoires de justice. Les proces Barbie, Touvier, Papon (Paris: Seuil, 2009), 5.

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4 CONCLUSION

Here I want to draw together the principal threads of this study and I will

begin by recalling the Aeschylean image of the flaxen mesh. In our discussion

of those lines from the Libation-Bearers, we remarked that the net is an image of familial relations, expressed in a complex set of norms and expectations that

the ancient Greeks termed philia or mutuality. Parts of that mutuality among

members of the community were thought to persist after death. That mesh,

which Aeschylus invokes in a passage describing children as “saviors” of their

dead parents, stretches from the dark depths to the sunlit surface. It is kept from being wholly enveloped in those lightless depths by corks, representing

the family’s children, which constantly lift it towards light and visibility. This

net, we observed, stands in for the community of the living and the dead, the

present and the absent. The corks hold it near to the surface: they are its saviors, keeping in place the norm-infused relations of which the net is woven, and

especially its ties between the living and the dead. Without those saviors, the net would slip back into the gloom, severing the community, the shared society

of its generations. There would be no archipelago of the living and the dead, only islands as separate and distinct one from the other as are (in Jefferson’s

phrase) two “independent nations.”

We can see an example of this in Electra’s worry that it would be a dishonor- able lack of care for the dead if Agamemnon were to be forgotten. Electra and Agamemnon, their respective places in the family community, and the obliga-

tions that are their philia, are the mesh of this enduring community. Electra’s

duties to the dead Agamemnon are sustained by the community of values, of

perceptions of the just and the unjust which they share, and which in turn less-

ens the radicalness of his absence by making him a claimant on his children’s

response to his fate. By contrast, in Antigone, Creon, acting as guardian of the

Conclusion 141

Theban political community, seeks to disrupt or unravel that (family) mesh by

ordering Antigone not to bury her dead brother (and traitor), Polynices. The intensity of her resistance to this edict is surely explained in part by the fact

that the fabric of her family relationships constitutes who she is, much more so

than does the civic mesh, and sets the obligations to her brother who, also con=

stituted by that mesh, remains a claimant on family loyalty. That latter loyalty,

in Antigone’s view, is more fundamental than his (or her) disloyalty to the city.

But as I remarked, one could readily imagine other relational fabrics, gov-

erning, constituting and sustaining their members through time, and ground-

ing a community of the living and the dead. Kant’s Kingdom of Ends is one

such mesh: of identical persons, each owing others the respect due to their com-

mon status as beings endowed with moral agency. Aristotle’s metaphor of the

draughts board and its pieces brings us close to the arguments advanced here.

The game’s overall structure, the attributes of the pieces, and the rules govern-

ing play are, Aristotle suggests, prior to the individual pieces in the sense of con-

ferring an identity on them individually and in their relations to one another.

The persistence across time of the community of justice is at the same time the

persistence of those embedded in its mesh. Absent that structure, the pieces lose

their individual and relational identity, become formless, mere wooden objects.

Separated by forgetting from the mesh of philia relations, familial or civic, past

persons are lost: “Ignored, they died again.”!

As spouses, parents and children, sisters and brothers constitute the relational

identities of a family household, so likewise, we might say, in a democracy a

certain understanding of (or aspiration towards) equality, citizenship, recogni-

tion and voice are key defining elements of that mesh in which we are located

and which confers on us a civic identity. Of course outside of such simplifying

theoretical exercises, we are likely to be located in multiple and sometimes frac-

tious relational fabrics, and often the fate of those wholly or partially excluded

from these communities will be a central question for doing justice to the past.

Among persons situated in the current generation of occupants, this can pro-

duce friction as the varied contexts of our lives (family, faith, citizenship, and

so on) draw their members in different and sometimes conflicting directions.

Bound up with this are the ways in which these multiple identity-conferring

meshes shape our relations with the dead. As we remarked earlier, for Anti-

gone, Polynices is a dead brother, and as such owed a fitting burial. For Creon,

King of Thebes, on the other hand, Polynices is a traitor to whom the city owes

nothing at all. Both Creon and Antigone have an enduring relationship with

the dead, but those relationships and their associated philia-based duties differ

according to the particular mesh that sets their responsibilities to one another

and to the dead. The mesh of the extended community, their places in it, both

the living and the dead, is composed of an array of relationships among them.

To be embedded in that often conflicted mesh is to become part of a plural and

persisting subject, a “we,” a “moi commun” extended across time.” The present

142 Conclusion

is thus not an insular moment, an island with no relationship to other genera-

tions, much less a uniquely privileged one. It is rather part of an archipelago of absence and presence, connected if only in narrow ways, to other parts of the

mesh. It is (as Burke understood and Paine feared) a world composed not only

of chosen bonds but as well of inherited obligations and of responsibilities for

the past and to the future, all functioning to limit the self-governance of the

present and living.

Yet at the same time as the past’s claims on us are acknowledged, so too is

the vulnerability of the absent dead to the will of the living, hence Aeschylus’s description of children as the saviors of their dead parents. The dead need to

be saved. The Lucanian vase shows the Furies performing one aspect of that

salvational work: making the absent victim present and in that way acting as her saviors. However the threads of the mesh can also be unwound and then

the ties to the past are weakened, and with that the relational presence of the

dead. Put another way, in denying the unjustly-treated dead what was/is owed

to them as members of a community that we share with them, we decline to

recognize them, we sever our bonds with them and allow them to recede into the depths of invisibility. French philosopher Vladimir Jankélévitch, reviewing Serge Klarsfeld’s Mémorial de la déportation des Juifs de France,° writes that

The human person has a name, and she is a human being because of her

name which identifies her, She is not lost in the anonymity of the species like abandoned dogs. . . . But the torturer-bureaucrats strove to dehu-

manize as completely as possible these ‘subhumans,’ beginning with the

annihilation of their civil status. ... The deportee was no longer anything

more than an impersonal number. . . . Serge Klarsfeld’s Mémorial brings

them out of the night and the clouds, by calling them by their names,

these countless anonymous ghosts annihilated by their executioners. To

name these pale shadows is already to bring them into the light of day.*

I turn now to a more detailed discussion of these points.

Living With the Dead

Recall Axel Honneth arguing that in considering our relation to the dead, we

allow for some thinning of the boundaries (or even the removal of them: Ent-

grenzung) of the world of the present, its claimed insularity and almost instinc-

tual naturalism.> One way to understand this lifting of the boundaries of our

insularity, to see ourselves as occupants of an archipelago of the present and

the absent past and future is to think of it as the recognition that as citizens,

co-nationals, members of families or faith communities, or members of the

Kantian Kingdom of Ends, we are thereby inducted into a “we” that stretches

across time.® In becoming members of those communities, those “plural

Conclusion 143

subjects” as Margaret Gilbert terms them,’ individuals acquire an interlinked and embedded identity, a partial one, distinct from the bundle: of. experiences

and autonomy they possess in their insular present. We discussed Aristotle’s

understanding of this “yoked” identity. Something like this idea can also be

helpfully expressed in Rousseauian terms. In becoming citizens, he argued,

we shed (incompletely) our private selves, their boundaries, and their accom-

panying amour de soi. In their place, we are embedded in and formed by a moi

commun, a common self, bound up with other citizens, sharing with them an

identity, a fatherland, and a common love not of self but of a common patria.®

Immersion in that common self not only breaks through the insularity of the

moi privé in relation to other selves, by joining those selves together in the mesh

of the political community’s mutuality but as well it gives them a temporally

extensive identity, a commonness stretching backwards and forwards in time,

thereby uniting them in a skein of justice with past and future citizens. In the

archipelago of the Rousseauian republic, they become inheritors of its past and

stewards of its future.” Communities of citizens, on this view, are not com-

monwealths in the goods and subjects of the current generation alone; nor is

their philia reserved solely for the living and present. Rather that mutuality, the

intergenerational mesh that confers a common identity on them, widens the

sphere in which they participate in a shared society of duties and the norms of

their common membership." Their obligations to one another emerge out of that mesh which binds them

to one another in relations of mutuality extended across time. Annette Baier

argues that these rights and obligations, the particular skein of relations among

members of political society, belong to us not by virtue of what we are as indi-

viduals but by the place we have within that fabric of the “common self.” In

this temporally extended community, our future-oriented obligations are to

not-yet-born members with whom we already share a limited community." Similarly, we participate in a community of responsibility with past members

by virtue of being “yoked” place-holders on that same mesh stretching from

the past and the dead, into the present and future. The moi commun in which we share gives us a mutuality with them, something that overcomes distance and

death.'? This “we” is not restricted to the community at any one point in time but is rather its long duration.'? Individually, we in our role-conferred identity are place-holders in that mesh and so related in varied ways to its past and future

occupants. As persons a part of whose identity is determined by membership

in the moi commun of the political community, we are enmeshed in a normative

web of inheritance, responsibility for and to the past and forward-looking obli- gations to other not-yet-living members.'* This “we” is one composed of those persons embedded (or who were or will be so embedded) in an intergenera-

tional mesh. “What we did.” is said by the living about their co-responsibility

for events that preceded their presence in the world. The acknowledgment

of a participation in responsibility beyond the temporal borders of the present

144 Conclusion

generation is rooted in citizens as embedded in (and in the sense of their civic

identity, constituted by) the enduring common self of the political community.

It is not an attribution of individual responsibility.’* The common self of this

community of place-holders passes beyond the insular present in two ways of

particular importance to this study. (1) It suggests one way of thinking about a

community of shared inter-generational responsibility to the past, present, and

future. (2) In conferring this kind of identity on persons, freeing them from the

boundaries of being present-tense bundles of experiences by immersing them in a temporally extended community of responsibility, it allows us to think of

responsibility across time, of an ongoing society with the dead and the not-yet-

born, and hence of their presence in our midst.

In brief, as Margaret Gilbert argues, being a part of a plural and enduring

subject projects each member beyond the boundaries of her own presence and

time into a past (and future) which is hers by virtue of belonging to that com-

munity.’” It projects us, that is, not in our time-bound and finite identity as

locales of experiences, but in the status I have as someone embedded in and (partially) constituted by that enduring community.'8 Just as the threads, the mesh of relations that is this common self of the political community, confer on

me in the here and now a measure of responsibility for the past so too can we

imagine that mesh being (in Aeschylus’s image) the “savior” of the dead or, if

not quite their savior, at least the means by which they, in their enduring status

as citizens, are brought forward into the present. Note that the subject projected into past time in the sense of being a co-owner of actions of which he could not

have been the author involves a very limited responsibility. Those limits can be

seen, in part, in the restricted responsibility he bears for that past. Responsibil~

ity for the past is here grounded in membership in an enduring plural subject,

a political community, and in none of the attributes of personhood and agency

that would fully implicate a person in such actions. So also dead members of an

enduring community have a similarly limited presence. The injustices they suf-

fered are, as we said, mostly irreparable, and the identity which embeddedness

in the mesh of community relationships confers on them is too thin to call for

more than a rudimentary (if nevertheless essential) response.

Reciprocity is not a possible characteristic of intergenerational relations,” but still there is a clear sense in which being a part of a community across time

sustains us in an ongoing relationship to that society, backward and forward in time, a relationship that is radically altered, thinned, but not entirely nullified

by death. We could say that Aeschylus’s image of the flaxen mesh represents a

set of defining relations within a community that endures across time. Those relationships, citizenship and its reciprocal duties for example, are vectors along

which move matters of justice, recognition, gratitude and accountability, and

stewardship. In that sense, we are, as members of this enduring community,

ourselves enduring: inheritors of a past and transmitters to the future, which

will be both theirs and ours.?° We are “in their company,” these past and future

Conclusion. 145

persons. Even though as individuals (who were once endowed with the full pan- oply of plans, desires, experiences and interests) they are now separated from

the world of the living, lost in what Michael Theunissen calls the “aloneness”

of death, as occupants of that relational fabric they are possible subjects of our

obligation to recognize them and to address the injustices done them.,”!

Harming the Dead

Not to recognize our community’s unjustly treated dead is to sever the ties of

that mesh, of the relationships that sustain them in their standing as subjects of justice across time. In that sense, it is to condemn them to a second death,

to utter invisibility, and to weaken the fabric of the enduring community.”

In death, much of what distinguished them as individuals vanished, but their

standing as members of a political community makes them a part of that mesh,

and causes them, in a very limited sense, to endure. The recognition of that

bounded presence is the basis for the carrying out of any further obligations to

them, obligations that depend on first noticing them as subjects of justice.”* For that standing to become efficacious in the world, it must be noticed, visible and

recognized. That, it will be recalled, was part of the meaning of the Lucanian vase’s representation of Clytaemestra, the image of her face in a mirror being

represented and made visible to Orestes. Consider this reflection on injury and non-recognition of the dead. In

Shakespeare’s The Winter’s Tale, Paulina tells Leontes not to “shun her [Herm-

ione] .. . for you kill her double.”*4 To shun is to deny her recognition, to ren- der her invisible, and in so doing to kill her a second time. It is an unbinding of

the social ties that gave her the presence of a family member, and thus to inflict

on her not a physical death but a social one. As we saw in our discussion of the

Invisible Man, a social death can befall not only the dead but the living as well. Claude Meillassoux, in an essay on slavery, writes of the effects of enslavement

as a type of civil death: becoming property, and deprived of family and ances-

tors, the slave does not share in the status of a citizen or “social person.’”*> The imagery of being forgotten or disappeared as a second death is a familiar one.

Karl Schligel for example describes (as we saw) the forgetting of the victims of

the Stalin dictatorship in the USSR as their “second death”:

Thus Stalin’s victims died a second time, this time in memory. They disap-

peared in the shadows [of Nazi crimes] . . . they became invisible behind

the unimaginably large number of victims of the Great Patriotic War.”°

“Death” used in these settings is, as we said, plainly metaphorical. The body,

the person as a locus of experience, dies once and for all. A second death affects the subject not in her flesh-and-blood existence, which she has already lost and in that facet of what she was she is forever separated from the mesh that is her

746 Conclusion

community. This second death deepens and completes absence by denying the

victim the recognition that would affirm his place in the fabric of that commu- nity. A postmortem rendering of the person as invisible, denying her persisting

status as a subject of justice, is to impose a second, now civic, death on her. In

denying recognition, by for example declining to acknowledge the unjustness

of the victim’s death, the civic relationship between the dead and the living

members of the community is unraveled. If The Winter’s Tale speaks to con-

tinuing relations within a family and the possibility of their being severed from that community by a decision not to recognize the dead, Schlogel’s observation

on the absence of Stalin’s victims from historical memory suggests that the

injury here is a redoubling of their invisibility as citizen-victims of the injus-

tices inflicted on them. And that in turn points to the root injury caused by the

invisibility of the wrongs done them: a denial of their standing as members of

a community of justice. The dead of the community are here consigned to a

second kind of oblivion, now not that of (physical) death and the destruction of

their embodied, living presence but of being forgotten and thus being removed from the saving mesh. We just noted Meillassoux’s reflections on slavery and

the making of the slave into a non-person, invisible to his masters in any of his human traits. Orlando Patterson, drawing on this, discusses the “social death”

of the slave, the condition of belonging to no community, “violently uprooted

from his milieu,” deprived of both past and future, only to become a “nonbe-

ing” in his master’s household.”’ The dead too, I have suggested, suffer a ver-~

sion of this second, or social, death when the living fail to acknowledge their

enduring status as members, and in so doing exile them from their community,

“deprived,” as Patterson writes of slaves, “of all claims of community.”?® It should be added that forgetting or the erasure of the memory of a person was also a form of state punishment, understood to harm not only the living but also

the dead by separating them from their community: “to wipe out their memory

from the earth.”?° Nazi “night and fog” actions, as well as the “disappearing” of people in Northern Ireland, Argentina, Chile, and elsewhere would seem to

be kindred with the damnatio memoriae practices of ancient Rome. Despite their radical dispossession, slaves retain (Patterson writes) a “liminal” presence: there

but invisible.°° We have suggested that something like this can also be said of the unjustly dead, the disappeared, and others whose physical annihilation

was accompanied by the second death of forgetting and silence. They are not acknowledged but remain, through their representatives, a demanding pres-

ence among the living.

Because my concern in this study is centered around the question of doing

justice to dead victims, I have not discussed the use of “civic death” to punish past perpetrators of injustice. Nevertheless, it bears mentioning that in a mirror image of the restoration of past persons to their place as subjects owed justice

in an enduring political community, often through acts of public memorial

solidarity, so likewise can a symbolic second (civic) death be inflicted on past

Conclusion 147

perpetrators. Examples of this abound. The destruction of statues of Lenin and Marx in the wake of de-communization in Central and Eastern Europe, the tearing down of the physical traces of Saddam Hussein’s regime in lraq, Creon’s order that Polynices’ body not be buried in Thebes: these-are ways of

separating the dead perpetrators from their communities. Recent efforts in the

United States to remove Confederate memorials function in a similar way.*!

For example, the removal of statues depicting Confederate General Robert E.

Lee in Virginia and Louisiana undo whatever relational bonds survive between

him and the living generation of the political community. Strikingly, in 1975,

Lee had been the beneficiary of a decision to restore him to those relational

bonds, when a bi-partisan majority in the US Senate voted to return him to

the citizenship he had lost in the wake of the Civil War.*? One last illustration:

in 2004, the then Chancellor of the FRG, Gerhard Schréder participated in

the 60th anniversary ceremonies commemorating the Allied invasion of Nor-

mandy. There he visited a British military cemetery, and spoke with gratitude

of the sacrifices of Allied soldiers, but declined to visit any German military

cemetery in the area. In a speech he delivered in Caen, Schroder described the

German military dead as having been sent into a war aimed at the “murder-

ous oppression of Europe.”*? Concerns for the well-being of living and future

members no doubt figure centrally in these acts, for example the signal sent

by honoring leaders who fought to preserve slavery. That said, the removal of

monuments to them or the refusal to visit the dead in their cemeteries expresses

a rupture, an exiling from the mesh of the political community. Thus the living

act in relation to the dead, in some cases by bringing them the justice denied

them in their lifetimes, in other cases, by responding to the injustices they com-

mitted, untying their bonds to the community.

In sum, there is a normative relationship between the living and the dead,**

one grounded in belonging to an enduring community, the Aeschylean mesh

that holds them all in a continuing if varied sets of relationships of justice.

Those relationships between past and present persons are few and narrow,” but

thin and few though they may be, they are important nevertheless. For hav-

ing shared a community with them, we are called to recognize that with the

enduringness of that community there is a persistence of standing among its

members, past and present, as fellow subjects of justice, and with that, residual

obligations to them.**

On the small stage of familial ties we can see a close analogue to the idea

of doing justice to the dead in the context of a political community. Con-

sider the French writer Georges Perec’s words on belonging to a family, death

and obligation: “I write: I write because we lived together, because I was one

among them, shadow in the midst of their shadows, body next to their bod-

ies; I write because they left in me their indelible mark, and the trace of that is

what is written.”2’ That relationship of love “is the exception to nothingness”

[the nothingness of death and absence], “[making the absent] visible.”° That

148 Conclusion

Perec’s parents were both killed in World War Two, his mother in Auschwitz

and his father in the French military resisting the Nazi invasion, lends a fur-

ther moral element to this obligation: not to betray them or to inflict a second death on them by unraveling the threads of the family mesh.*? I say a “close”

analogue because the mesh of an inter-generational family is woven of intimate

and affective attachments that are not part of a political community and its

reciprocal obligations. Nor, conversely, does the language of justice, subjects of

justice, and their particular attachments to one another seem appropriate in the

context of families. Though an analogue, yet it is a revealing one for in it we

see the place of presence, absence, recognition and a set of enduring obligations

peculiar to the family, which point us to a roughly comparable normative order

that is the political community’s. In both instances, the dead are not entirely

excluded from the present but are sustained as enduring subjects of those com- munities, saved from a fall into oblivion by its mesh of relations. Thus their

limited and particular presence among us: obliging us to recognize them in

some of what they were when alive, members of families or political communi-

ties; to address injustices done them, and capable of suffering a second social or

civic death when we fail to notice them, when we forget or act as if no response

was owed them.

In the preceding pages I have discussed a way of thinking about ties between

the living and the dead, in which the dead retain a relational, “yoked,” connec-

tion and with that a kind of presence among the living. That relational con-

nection preserves their presence as claimants on our response to the injustice

done them. A decision in the present not to respond to their fate unties that relational bond, and in that way inflicts on them a “second [civic or social]

death.” The harm done them is relational and not to their interests, plans or

their embodied selves all of which ceased to exist with their deaths. There is, as

Ruben remarks, no non-relational change in the dead.*° They exist only by, and to the limits of, the relational mesh binding them in a shared community

with the living. Relational changes are sometimes characterized as symbolic in

character rather than actual (tatsdchlich). Or in Geach’s terminology, they are

seen as “Cambridge” changes as opposed to “real” alterations. Real changes,

on this view, always involve some non-relational alteration. Hence the only

changes that are posthumously predicable are relational (Cambridge) ones. I

will return to these and related issues further on in this section.

Allow me to turn now to some illustrations of a mesh of enduring (but trans-

formed) relations, the obligations they sustain and responses to them. Lévinas

writes of courts of justice as places of “contemporaneity . . . the visibility of faces

[visages] . . . and co-presence on an equal footing.””? They are, he says, sites of

“synchronicity” and “being-together-in-a-place.”*? As we remarked earlier, courts are places where past and present, victims and perpetrators, crime and

justice meet and are co-present. They are made visible to one another in the

“concern [souci] for justice.“4 The “changed time” of the judicial process closes

Conclusion 149

the distance that separates the present and the absenit.45 That court space is satu- rated by a “concern for justice” which makes visible and equalizes the Parties, and suspends the effects of the crime, death and the passage of time.44 These

judicial or quasi-judicial settings thus allow even the most radically absent to

be present and in a sense visible, that is, recognized, affirming thereby that the

mesh of relations and norms which are central to that doing of justice have not been severed by death and the passing of time. And of course it is not just in

the space of institutionalized justice, such as courtrooms, that there is a syn-

chronicity of victim and perpetrator, dead and living. Recall in this regard our

discussion of Patrick Modiano’s Dora Bruder. There the murdered teenage girl

is an absent presence in her own city but that “ensemble-dans-un-liew” (“being-

together-in-a-locale”) comes to light only with Modiano’s search for an under-

standing of her fate, for remembrance, in the “concern for justice” for her.*”

Brought together in a space by a concern for justice: Lévinas allows us to

recast what we said earlier about the displacing of the victim to the periphery

of the process of doing justice, a marginalization already foreshadowed in Cly-

taemestra’s fate after the trial of Orestes in Aeschylus’s Eumenides. In classical

Athens, the murder of a family member was an offence against her entire fam-

ily*® and thus authorized them to pursue her killer. So the modern prosecutor

represents the entire community in its concern for justice.” The absent/dead

victim, as a member of that community,°’ embedded in its mesh of relations

including those of justice, is in that limited sense made visible and present.°!

An aspect of this can be seen in the use of witnessing in trials and other

quasi-judicial inquiries related to gross human rights violations. There, as

Antoine Garapon writes,

In bearing witness to the disappeared, making their names or their faces

imperishable because embedded in the oral testimony of the trial or pro-

jected on a screen in the courtroom . . . the trial . . . saves them from

[complete annihilation] being forgotten . . . witnessing becomes the [nar-

rative] saving of a life drowned by history.”

The life, the presence, that justice confers on these victims is political in the

sense that it originates in and affirms their standing as members of the com-

munity. It creates, Garapon says, an equality of voice, and confers the recogni-

tion implied by having one’s voice heard.*? This helps us to understand that the

language of absence or invisibility, and of presence or visibility, is intimately

bound up with recognition. Courts, in allowing the stories of the disappeared

to be told by their witnesses recognize these drowned ones, these “lost ones,”

as members of an enduring community and therefore as subjects of justice, to

whom is owed an accounting, a response to their fate. Bearing witness to them,

like the Lucanian vase’s image of Clytaemestra appearing in the Fury’s mirror

staring accusingly at Orestes, gives the victims a certain presence made possible

150 Conclusion

by a “moral inversion of time,” a “synchronicity” and a “being-together-in-

a-place.” That presence is acknowledged in the affirmation of the continuing

relationship of the dead to the living members of their community. The “con-

cern for justice” casts light on the past and future, makes visible what other-

wise would be out of sight and so grounds a care for the dead (and for future

persons).

Understood in this way, making the victims central in these proceedings is

not an illicit turn from the trial as a public function to the private grievances

of the victims or their survivors but rather the recognition of these persons in

their yoked identity as members of their political community. The prosecutor,

who here represents that community, acknowledges the victim not in her indi-

vidual, familial, religious attachment or other (non-civic) relational positions

but as a subject of justice.°4 The absent victims are in a very circumscribed

sense repatriated in the judicial process: recognized as members, their status and

claims intact after an attempt to annihilate them entirely, both in their bodies

and in their place in the relational mesh. Writing about the 1997-1998 trial of Maurice Papon for his involvement in the deportation of Bordeaux Jews to

Nazi concentration camps, Arno Klarsfeld said of his father’s (Serge Klarsfeld)

work representing those victims: “My father restored their civil status and dig-

nity to them [the murdered Jews of the Bordeaux region]. He made them into

human beings again.”°° To restore their “civil status” and its attendant dignity,

is to acknowledge their judicial-political presence, and in particular to recog-

nize and affirm their status as members of a community of justice, members

who suffered injustices and who are therefore owed a response.

Consider the following two quasi-judicial responses to gross human rights

violations: the Guatemalan CEH (Historical Clarification Commission) and

the British Saville Inquiry into the Bloody Sunday killings in Northern Ire-

land. The creation of the CEH was part of the 1994 Oslo accords designed to

bring an end to the long and extremely violent armed conflict that had been

a catastrophe for Guatemala and its people. In its 1999 report, the Commis-

sion recommended that the Guatemalan State, in the person of its President,

acknowledge the gross violations of human rights that had occurred during

the conflict. The “primary aim of [this acknowledgment was] restoring dig-

nity to the victims.” It added that the Congress should “{reaffirm] the dignity

and honour of the victims and [restore] their good name and that of their

relatives.”°° In practical terms, the CEH saw this restoration of dignity taking

place through “acts of moral and symbolic reparation,” and in such responses

as locating the bodies of the disappeared.°” The restoration of their dignity

and the clearing of their names affirm their standing as members of a political

conununity and as subjects of justice, entitled as holders of that status to have

the injustice done them publicly recognized. The importance of these being

public acts, here by the Congress and President of Guatemala, lies in the fact

that the mesh that gives the victims a presence is itself public and political.

Conclusion 151

Answering the injustice done the victims restores thern to, and so mends, the mesh of relations.

Let us return to our discussion of the events of Bloody Sunday, January 30, 1972, in Northern Ireland, with our focus now on the:two principal judicial responses to those killings. Shortly after the shootings, Parliament created 4 Tribunal, chaired by Lord Widgery, to determine what had in fact taken place that day. Its Report was published in April 1972. The political background to

that document was a protracted struggle for full civil rights for the: Catholic

minority, the deployment of the British Army in the province, increasing IRA

activity and rising tension between the Army and the minority population

culminating in the Bloody Sunday shootings. The Army’s account of what

occurred differed sharply from those of civilian witnesses. The Army for its

part insisted that soldiers shot only at armed individuals who posed a threat to

life, Civilian witnesses testified that the soldiers fired at and killed or wounded

unarmed and innocent civil rights marchers. The Report of the Widgery Tri-

bunal was the British Government’s first official response to the events of Janu- ary 30, 1972. The Report accepted as “truthful” the soldiers’ explanations of

why they fired their weapons.** It also affirmed the Army’s claim that there were armed civilians present in the vicinity of the civil rights march, and that

those persons were the first to open fire. As to the fates of the thirteen persons killed that day, the Report acknowledged that none of them had been proved to have been using or handling a firearm or bomb when they were shot. Nev- ertheless, the Report concluded that while

some are wholly acquitted of complicity in such action . . . there is a

strong suspicion that some others had been firing weapons or handling

bombs in the course of the afternoon and that yet others had been closely

supporting them.°°

For much of the minority community, on the other hand, the Bloody Sun-

day dead were unequivocally the innocent victims of Army gunfire, an Army

in their view increasingly engaged in an effort to suppress that community.

That injustice seemed to be compounded by the Widgery Report which was

widely seen as absolving the soldiers of responsibility for these killings, of refus-

ing to acknowledge that anything worse had happened than that some soldiers’ “firing bordered on the reckless.”°! The Report was also read as damaging the

reputations of the dead and wounded by suggesting that at least some of them

were paramilitary members, or persons cooperating that day with the IRA in

gun and bomb attacks on the soldiers. The Widgery Report, in brief, denied

the dead and wounded the recognition of the injustice of their fate and in so

doing effectively denied them the political community’s “concern for justice.”

Twenty six years later, years of violent strife fueled in part by the events of

January 30, 1972, Prime Minister Tony Blair appointed a second tribunal (the

152 Conclusion

Saville Inquiry) to reinvestigate the Bloody Sunday killings. In 2010, the Saville

Inquiry delivered its report, which concluded that all the dead and wounded were innocent and that there was no justification for the shootings. On behalf

of the British Government, Tory Prime Minister David Cameron accepted these findings and formally apologized to the victims and their families.

The Saville Inquiry Report, the Government’s acceptance of its findings,

and the resulting apology were to be sure shaped by powerful present and

future-oriented concerns. In the minority community, the reception of the

Report focused on recognition of and justice for the dead victims of Bloody

Sunday. In words and images, their standing as wronged members of the com-

munity, persons owed a response to their fate, was affirmed. The victims and

their killers were made synchronous “in the concern for justice.” The Saville Inquiry Report, in other words, acknowledged them as wronged subjects of

justice to whom a response was necessary. That recognition, accorded them after

almost forty years of waiting in the silence of justice, answered them as claim-

ants on justice and not mere “dust and nothing.” There in the representational

forum of the Inquiry, its attorneys and witnesses, the wrong done them was

named. What they also received, and this was central to the families’ responses

to the Inquiry’s findings, was the posthumous recovery of their “good names,”

one of the few acts of repair still possible. The brief remarks by family members

at the Derry Guildhall building on the day of the Report’s release ended (as

we noted earlier) with the proclamation of each dead person’s innocence, a fact now officially accepted by the British government. The “concern for justice”

made them visible, as the Furies’ mirror did for Clytaemestra, in a limited but

real sense: as the wronged owed the truth.

The shouts of “innocent” which in Derry greeted the news of the Saville

Inquiry’s conclusions in effect acknowledged the restoration of the victims’

civil status, and undid the posthumous injury done to their reputation and good

name.®? When Kevin McElhinney’s sister addressed the crowd, she said “Kevin

McElhinney is innocent.” Those words at once recognized the injustice done

him, affirmed his good name and made him visible in the mesh of relations of

an enduring community. It conferred a kind of presence on him: his sister uses

the present, not the past, tense to describe his standing as an innocent. It is not simply a historical fact that McElhinney was in the past innocent, when he was

alive on that January 30, 1972, afternoon and up to the moment of his death,

but that he is innocent in the here and now. The denial of that innocence over

the forty years after his death was an additional injury and injustice. The pres-

ent tense affirmation of his status as an innocent victim of state violence and

therefore as a wronged person is not addressed to him as a subject possessing

the wide range of traits characteristic of a living, embodied, person but rather

as a person constituted by those relational properties of membership in a per-

sisting community. Those latter properties, needless to say, do not exhaust the identity of that person (when he was living), nor do they capture the manifold

Conclusion 153

communities (family, faith, professional Or occtipational and so on) in which he was embedded. These multiple meshes of belonging can theniselves be a source of tension,

I want briefly to discuss another way of thinking about what occurs in

judicial or quasi-judicial settings dealing with historic injustices; e.g., the

Papon trial or the Saville Inquiry. We have just now observed that these institu_

tional fora can be seen as engaging in a “moral inversion” of time in which the

“concern for justice” creates a synchronicity of victim and perpetrator, brings

the victim of injustice into the public space of the courtroom, and through her

representatives there gives voice to her accusation. In the words (quoted earlier)

of Eichmann’s Israeli prosecutor, Gideon Hausner:

six million accusers. ... Their blood cries out, but their voice is not heard.

Therefore I will be their spokesman and in their name | will unfold the

awesome indictment.

And it recognizes her, affirming her standing as a member of that community

against the perpetrator’s annihilationist project. When Serge Klarsfeld, in his

testimony at the trial of Klaus Barbie (World War Two head of the Gestapo

in Lyon), read the names, ages and some of the correspondence of the Jewish children of Izieu, deported (on Barbie’s order) to Auschwitz and murdered

there, he went beyond a legal giving of evidence. His words about the children

of Izieu were, he said, an “introduction.” “It seemed important to me to have

all these children enter into the court.”© Claude Lanzmann said of Klarsfeld’s

speech to the Court: “It was the act of naming [nommation]. He restored their

proper name to each child of Izieu.”®’ These processes are then also expressions

of solidarity with the dead victim.® The “concern for justice” is bound up with that solidarity of a community of citizens, both the living and the dead, their

relationships transformed and diminished by the “far places” they occupy, but

not severed.

Justice and Memory Work

Earlier, we discussed some of the language used to express the failure to recog- nize the victims of historic injustice, and especially that of being forgotten as a

“second death.” That, we said, involved a kind of civic death, an invisibility or

loss of presence within one’s community. In the absence of a response, she is no

longer enveloped and sustained by the “concern for justice.” The person ceases

to be recognized as a subject of justice, as someone located in that mesh which holds together a political community, makes it a moi commun, grounds its persis-

tence across time, constitutes its members as citizens and binds them in endur-

ing relations of justice. If death ends their embodied existence, this second

type of being disappeared takes place within a much more limited dimension

154 Conclusion

of the person. Death has in many respects deindividualized her. What remaing

as a presence (and not simply a memory of something lost) is the person as

citizen, and a subject of justice in the community of which she was and (o |

have argued) is a member. Her represented standing inverts that annihilation

and restores to her a civic presence as a subject of justice to whom a response is owed. Conversely, forgetting, or a false “official story” which conceals the

reality of the crime and so attempts to annul her status as a wronged claimant on justice, causes the disappearance of all that remains of her. There is here no

pain, no defeated plans, lost income or any other diminishing of the goods of

life. In death, those were irremediably lost. The injury she suffers now if she is

not recognized as a present claimant on justice is the relational loss of her civic

standing, of the recognition of her place on that flaxen mesh. She and others

may never have been allowed a place in that mesh, an exclusion that often pres-

ages the further gross injustices that follow from it. Here the response to her is

not properly speaking the restoration of a damaged civic standing but the rec-

ognition of the profound injustice of the original act of exclusion. In all cases,

whatever repair can be made will be constrained by the limits of that surviving

personhood. As for the rest, it is in the past and thus beyond reach.

Memory work is one of the ways in which the damaged mesh of relations

and their occupants are restored, and we can understand that work as an obli-

gation owed to those enduring claimants on justice, to the community itself,

and to those denied their rightful place in the community.” In the context of

judicial or quasi-judicial responses to gross violations of human rights, the set- —

ting we have been considering in these pages, it is the court as a locale of syn-

chronicity that dovetails most closely with memory. The simultaneous presence

of the victim and the accused, of a past crime and present act of truth-finding, witnessing and judging amounts (in Jean Améry’s phrase) to a “moral inversion

of time, [the perpetrator present as] a fellow human with the victim.” Memory

is at work here in a non-metaphorical way in the process’s effort to determine

the relevant facts about a past state of affairs. In the represented presence of the

victim, it moves from the past “as it really was” to a past that comes to light out

of a “concern for justice.” This latter can of course set the stage for demands for

vengeance: “In the name of the victim... we charge you to appease the wrath

of the spirit of vengeance.’”° Yet there is no necessary connection between

memory, the synchronicity of victim and accused on the one side, and the thirst

for revenge on the other. Indeed, TRC-like processes aim at memory-justice

for the sake of the victims and reconciliation for the living and for future per-

sons.’! Bringing the crime, its victims and perpetrators back from the depths of time past is here first and foremost a way of giving recognition to the victim

and acknowledging the injustice done him. By contrast, forgetting or conceal-

ment of the crime in (for example) a pseudo-history leaves the victim in the

dark depths, and imperils his few remaining ties to the political community.

Conclusion 155

Judicial remembrance, the making present of the past,” affirms the presence of

the dead as an enduring subject of justice, one owed the truth about her fate and

a condemnation of its injustice. Owed truth, her good name restored (as ‘we saw

in the responses to the Saville Bloody Sunday Inquiry report), and recognition

rather than invisibility: these various elements of debts to the dead are bound

up with the enduring basic relationships of a polity. Those relationships both

underpin the work of memory-justice and are sustained by it.

When we reflect on the central place that memory has in answering his-

toric injustice, it might appear (as we mentioned earlier) as though this is

merely symbolic compensation for the wrong suffered. The thought here is

that remembrance, apologies and so on are (implicitly) prefaced by a “we wish

we could do more” (but cannot) qualifier.”? That qualifier in turn rests on

the thought that because the dead are no longer subjects of justice any action

taken in relation to them must be of a symbolic form, affecting us perhaps but

not them. The argument developed in this study suggests a different under-

standing of memory and the absent victims of injustice. Memory has a par-

ticularly important place in the archipelago of absence and presence. It yields

the synchronicity we discussed earlier, infuses lived space with the long dura-

tion of a community, overcomes the invisibility of absent persons and past

injustices, offers recognition to the drowned of history and in all this it mends

and so preserves intact the flaxen mesh of relations that persist across time.

Remembrance is the principal mode of response to absent subjects of justice,

and without it those absences would not be part of an archipelago of related

locales but rather truly insular in character.

Remembrance here is not an expression of nostalgia, regret, or remorse. It

is not a response to the distress caused by the irreversibility of time, nor is it

a balm for that sort of ache. It is not necessarily (though it certainly can be) a

vector for vengeance, keeping ancient wounds fresh so as to motivate present

violence. And not even in the judicial and quasi-judicial settings we have been

considering is it solely the means for determining the truth about the past. It is

also that, of course, and so becomes a counterweight to amnesia or to a falsify-

ing “official story.” Consider in this regard the Chilean film, “Nostalgia for

the light.”” Set in Chile’s Atacama Desert, a location favored by astronomers

for its darkness and excellent seeing, the film depicts the work of scientists

whose telescopes collect the light emitted by ancient astronomical events. That

same desert also draws people looking for another kind of light in their search

for something past and distant: light about the “disappeared” of the Pinochet

dictatorship, searching for their remains left in the desert by the regime, giving

them in Aeschylus’s words “light to compensate for [their] darkness.” And so

while the astronomers gather there in search of the traces, the light emissions,

of ancient events in the heavens, the relatives and friends of the disappeared

search the desert floor for the traces of absent persons and long-ago crimes.

156 Conclusion

Both groups of searchers are looking for the truth of the past but for differen reasons. For the relatives of the disappeared, the search for remains is born of

their enduring relationship with, and duty to, the unjustly dead. In its more civic significance it is part of the recognition of the wrong done them, and an

affirmation of their status as subjects of justice owed an answer for their fate.

In a way of course they are just bones in the desert, bleached white by years

of blazing sunlight. Yet in another sense, their persons persist in the meshes of

relationships, political and familial, which breathe not life but a kind of pres-

ence into them.

So likewise in the more formal judicial proceedings, memory is civic (and

not for example familial or confessional). That is, what is owed to the absent victim is owed to a person who shared (and still as a citizen) shares in that mesh of relations that constitutes the political community. Naming her and

bearing witness to her are memory acts of recognition. Discovering and stat-

ing publicly what happened to her, announcing the injustice inflicted upon her: these acknowledge her persisting civic presence and the need to do it justice. As we remarked earlier, forgetting and the falsification of her past, by

contrast, threaten that persisting mesh, render the victim invisible and in so

doing block her recognition, that one measure of justice still available for her

as a member of a community extended across time and (thinly) shared by the

living and the dead.

Those acts of recognition secure her real presence, and are no longer merely a haunting or shadowing. Here are two more examples. An Israeli newspa-

per article reports on a 2017 calling of the student attendance roll at a Polish

secondary school.”° Included on the roll are the names of 87 students, young Jewish women, who were deported to concentration camps during the Holo-

caust, many of them to their deaths. As each of the names was read out, a cur-

rent student responded on her behalf ‘‘Jestem,” “I am present.” Here a school

community recognizes its murdered members, and through the representation

of the living, announces and affirms their presence in that enduring mesh of

relations.’”° An on-line Argentinian site, Desaparecidos, presents a Wall of Mem- ory on which are inscribed the names, photographs, and short biographies of

some 1300 of the (estimated 30, 000) “disappeared” of the Argentinian “dirty

war” (1976-1983). At the top of that page, “Presentes!”: the insistent claim that

they are here and present, and therefore cannot be treated as if they are so

much “dust and nothing.”’’? Heart-wrenching appeals from family members for information about their vanished loved ones are testimony to the radical

absence documented on the Memory Wall. Yet in an intuitive sense, they are present: in memory, images and words. But underlying those instantiations of

presence is the fundamental one: they are present in relational attachments, in

their embeddedness in the mesh of civic and familial relationships that envelop

the living, the dead and future persons. And that is the source of our particular

concern for them and our responsibilities to them.

Conclusion 157

Drawing the Final Line

Those same processes that create the synchronicity of victim and perpetrator, thereby annulling some of the corrosive effects of death and the passage of time,”® also allow fora break with the past and its denizens. I turn now to a brief

discussion of that aspect of addressing the victim of historical injustice. Recall

that in Aeschylus’s Eumenides, the trial of Orestes involves a rupture with the

past, its crimes and the victim’s desire for vengeance. Clytaemestra, through

her Furies, is heard and represented, and her tormenter called to answer her in

the synchronicity of the Areopagus trial. But then, after the trial’s decision, she

and the Furies are mute, their grievance no longer a public matter. The hold of

the past and of its victims is loosened, and the present and future are thereby

disencumbered. Antoine Garapon, discussing the temporality of trials, argues

that they are a point of rupture between past and present: at once an act of

memory, making the past present in order to do it justice, and the drawing of a

thick line separating past from present. Trials, he concludes, lift the weight of

the past, and allow us in the present to free ourselves from that yoke.”? Phrased

differently, and placed in the context of the argument developed in this study,

the past and its people recede from our shores in the sense that they no longer

weigh on us in the present, or at least do not weigh as a matter of justice left

incomplete. The recognition of the dead victim, the acknowledgment of the

wrong done her, and of her being a claimant on justice exhausts what can be

done for her, and so quiets her demand for justice. The affirmation of a solidar-

ity with her, in effect the recognition of her enduring status as a member of a

political community (or as one unjustly denied that status), stills the angered

voice of a person drowned by history. The kind of presence she has, a member

of a political community embedded in and formed by its mesh of relations, is

recognized and secured in these processes.

This resolution does not separate the living from the dead.*° Rather it

acknowledges their standing, and in so doing responds to the injury of absence

and invisibility, to the scandal of the unanswered injustice inflicted on them.

Once answered, they (and we) can now be still. I think that something like

this is what Catherine Kelly, sister of Michael Kelly (one of the Bloody Sunday

dead), meant when she said (in words partially quoted earlier) “The wait has

been almost 40 years. Today the truth has been told. I say to my little brother,

Michael, at last you can rest in peace forever.”®! In that sense, a line is drawn,

but not one that announces the dissolution of the mesh of relationships bind-

ing together past and present members of the community. Quite the contrary,

by addressing historic injustices and recognizing the dead victims as claimants

on justice, these processes reconcile the living and the dead and in that way

sustain the solidity of the mesh of relations. At the same time, however, they

do also draw a line: an adequate response to a grave injustice done to a person,

constituted for public purposes by membership in a persisting community of

158 Conclusion

has done all that can be done to address the irreparable dead. In her testimo mn

Bloody Sunday) said

the family but in the house he was grand. His first job was stacking shel in a local supermarket and he had been working there for over a oa when he was killed. He did not smoke or drink and he loved his matisie. remember his favourite pop group was T-Rex. He used to have a record player in his room and he had a large collection of pop records. He would let me borrow his records as long as I was careful. I miss him a lot.

That part of who he was as a subject lies forever in the past and beyond repai Her concluding statement that “I now want the truth of what happened ther day to come out and for the names of those killed to be cleared” points to his presence as a subject of justice, for whom repair is possible.®? Further repair of the dead lies (in John Locke’s words) beyond the “weak hands of ‘ustice ” But the recognition of the victim and of her enduring status as a person embedded in a mesh of relations of justice is both possible and necessary.

Caring for the Dead

In the Preface to this study, we briefly discussed parts of Plato’s Phaedo, and its linking of death, justice, and philosophy as a way to map broad issues of absence and presence. Much of that dialogue is taken up with a critique of naturalism and a defense of the reality of what is not given to the senses in experience including the immortal soul and “justice itself.” Here I want to return briefl to the Phaedo, and especially to its opening and closing sections pages in which a different aspect of death appears. Rather than a welcome (at least for the phi- losopher) escape from the empire of the senses that holds the living in its thrall death is here represented in its more social impact: as a departure, a leaving of someone. Socrates’s family and friends are gathered around him in jail on the day of his execution. Addressing his friends, Socrates reassures them that he is going away to savor the “joys of the blessed.”** And a substantial part of the dialogue is devoted to Socrates telling “myths” (61d-e) about what will hap- pen to the just and unjust in that distant place. Although Socrates is calm his friends and his wife, Xanthippe, are overcome with emotion (1 17c). His friends describe Socrates as being like a father to them, but that now with his leaving

Justice, puts an end to unacceptable silence and forgetting. The limited ; tes. ence that belongs to the dead by virtue of their sharing in an enduring a“ munity of justice is thus recognized and made visible. In that act, the presse , ent

to the Saville Inquiry, Roslyn Doyle, sister of Kevin McElhinney (killed 5 n

He was a very good brother. When we were younger he used to baby. sit for us. He would . . . let us stay up if what was on the television Was suitable for us. Otherwise, we had to go to bed. He was quite shy outside

Conclusion. 159

they will be “bereft” and like “orphans” (116a). Socrates is plainly irritated with their attitude, sends Xanthippe away and admonishes his companions: that a

life lived in philosophy gives great hope for what to expect after death (67b-c).

That reassurance however does not diminish the insight that underpins

Socrates’s family’s and friends’ response to his imminent execution. Death is a

leaving, a going to another place perhaps but one impossibly distant and from

which the living are excluded. The mesh holding Socrates and his friends

together, conversation about the good, will come to an end and so too, they

fear, will their community with him. Death for those embedded in a commu-

nity is feared because it entails the loss of or radical (and diminished) transfor-

mation of their relationships. And that for people “yoked” in the flaxen mesh

of a community is also a loss of part of what they are.24 The community they

shared, not that of citizenship (several of the gathered friends are foreigners:

59c) but of the life of the mind and of philosophical conversation will cease

altogether or be sharply diminished and thus their philia bonds will be thinned

or dissolved. Death, in short, is not only the separation of body and soul but

as well the separation of the living from the dead. Plato’s dialogues, including

the Phaedo, like the Furies’ mirror, function in part to keep Socrates present,

still conversing with those around him. In this way, Simmias’s concern that

Socrates will depart, never to teach them again, destroying thereby that “good

which belongs in common to us” (634d), is allayed. In his oblique way, now

not (like Clytaemestra) reflected in a piece of polished metal but represented

in the pages of the dialogues, and in the philosophic praxis portrayed there, he

shows that he continues to be (even in death) “the chief of helpers in the quest

of virtue” and thus a presence among them.® In doing that, he keeps intact

a core part of their mutuality, their “common” something, even from the far

place of his death.

Yet, the imminence of his execution strains the circle of friends. On the

one side, they are taken aback by how lightly Socrates seems to bear the pros-

pect of departing from his friends (63a). Their emotional tumult, and his calm

demeanor, combine to challenge the community’s solidarity. Asked how he

wants to be buried, Socrates responds “However you please .. . if you can catch

me and I do not get away from you” (115c). He makes light of what he takes to

be their principal concern: that the person simply is his embodied form, which

Socrates is happy to flee but they want to care for. In fact, they are solicitous of

a number of things: his remains to be sure, but also the community of which

he was the center and guide. And they also want to know if there are any other

ways in which they can serve him after his death, for example, seeing to his

children’s well-being, or “anything else” (115a-b). This is done in anticipation

of their role as care givers for the dead. Notice in this discussion of caring for

the dead, Socrates is indifferent to the treatment of his body: “However you

please” he answers their attempt to find out what he wants done with his body.

He assumes that it will be “dust and nothing.” On the other hand, Socrates,

160 Conclusion

a “wise man,” will endure and his wishes can be served by the living “taking

care [epimeloumenoi] of yourselves . . . and if you do not take care [amele~te]®® of

yourselves . . . and do not follow the path marked out by our present and past

discussions, you will accomplish nothing” (115b). Socrates understands that

his circle of friends can still serve him once he is dead by continuing along the

path they marked out together. Xanthippe is right in saying that this is the last

time he and his students will converse together, and surely it is the last time

he will stroke Phaedo’s hair (89b). Death, these passages tell us, is a departure

and it profoundly transforms and radically reduces the relationships between

those who once enjoyed the full range of experience but now find themselves

at a great distance from the living, Nevertheless, he will remain a presence, in

speech and in the witnessing memory of his circle.

And he will get a measure of justice, one denied him in his own city: Athens

will be judged by how it judged Socrates.®” In a similar way, Socrates (through

Xenophon) implicitly contrasts the bad reputation that will follow his persecu-

tors even after their death with his own posthumous fate: “We are told also that

he remarked as he saw Anytus passing by, “There goes a man who is filled with

pride at the thought that he has accomplished some great and noble end in put-

ting me to death... . What a vicious fellow,” he continued,

not to know, apparently, that whichever one of us has wrought the more

beneficial and noble deeds for all time, he is the real victor... . And so in

contemplating the man’s {Socrates’] wisdom and nobility of character, I

[Xenophon] find it beyond my power to forget him or, in remembering

him, to refrain from praising him.®

In the Phaedo, Socrates describes the meting out of justice in the netherworld,

where those who have committed great and irremediable wrongs are “cast by

their fitting destiny into Tartarus, whence they never emerge” (113e). Those

on the other hand who have committed great but remediable evils call out to

their victims, pleading for their mercy (114a-b). The unjustly dead and their

tormentors meet, the victims no longer the oppressed but the deciders of justice

and the guilty the supplicants rather than the dominant ones. Finally, persons

who have excelled in leading a good life while alive are now freed from those

“regions within the earth” and “pass to still more beautiful abodes.”

These elements in Socrates’s fanciful description of the afterlife are note-

worthy for a number of reasons. (1) The unjustly dead and their deceased tor-

mentors both receive their posthumous measure of justice. It is delayed, to be

sure, but it shows Plato’s conviction that the wronged dead are owed and can

receive justice. Those, on the other hand, who lead good lives experience the

easy death the gods love and are the “real victors” in the afterlife. Their names

are lovingly remembered among the living, just as their dead assailants’ names

carry their shame into the afterlife. The dead, in short, are not cut off from

Conclusion 161

justice but meet again, assailants and victims alike, in a posthumous “concern for justice.” (2) Xenophon’s Memorabilia and his Apology, and Plato’s Apology, Crito and Phaedo are all mirrors of Socrates, representing the dead to the living in the concern for justice awakened both by his conversation and by his trial and execution. As such, they also affirm and assist in his continued presence in the community of friends and philosophers gathered around him on what they

wrongly assume (with Xanthippe) is the final day of their community as some-

thing intact and whole under the guidance of Socrates, and with those in the

future who will engage in the philosophic life. The Phaedo thus provides an

account of death and the dead in the context of their community with the liv-

ing. In its dramatic setting, i-e., Socrates’s imminent execution, his friends and

family gathered around him in jail, the fear of a once and for all leave-taking,

we see the intimations of a changed but continuing presence that deepens our

understanding of the community of the living and the dead.

Central to this study, is the idea of a community arrayed across time, an

archipelago held together by a normative relational fabric. As for the living

and the dead, they are “held together” in a diminished yet real manner: death

must necessarily involve a radical reduction of persons and of the range of their

relationships with the living, though (we argued) not to the point of becom-

ing “dust and nothing.” This we contrasted to an insular view of the long duration, one in which temporally closed generations of a community have a

dot-like co-existence, and are in effect “independent” countries in relation to

one another, sharing in little or nothing. We reflected on the idea of an archi- pelago of moments-in-time of communities, familial and political, drawing

on Aeschylus’s image of a “flaxen mesh” stretching from the dark depths to the

sunlit surface. This image, we noted, is used to describe the web of relation-

ships, of persons, norms, and institutions sustaining the community across

time and change, and keeping in place on that net those who would otherwise

be drowned by the passing of time. That flaxen mesh in which the dead and

the living are embedded in relations of philia both constitutes them by giving

them a “yoked” identity, and thus helps save them from the civic annihilation

of death.

Here I want to return one final time to a passage that we briefly discussed

earlier: “I write: I write because we lived together, because I was one among them, shadow in the midst of their shadows, body next to their bodies; I write

because they left in me this indelible mark, and the trace of that is what is

written .. . writing is the memory of their death and the affirmation of my

life.”°° Writing is an expression of their community, their death and his life

held together in the memory of writing. It is at once an answer to the “scan-

dal of their silence’”®' and a duty because he “was one among them.” It is,

phrased differently, an act of recognition of and solidarity with the dead, here

the unjustly dead of a family. Being embedded in that mesh, constituted (in

part) by its relationships (their “indelible mark”) sustains his parents’ absence/

162 Conclusion

presence across time and keeps those relationships intact if diminished by the

fact of death.

I observed earlier that these relational meshes, and the plural subject that

they help constitute and sustain, are multiple and often not in conformity with one another. Perec’s account gives a forceful illustration of that. He writes, “My mother does not have a tomb. It was only on the 13th of October 1958

that a decree declared her officially dead.” A later decree, November 17th

1959, added that “if she had been a French national, she would have had the

right to be referred to as having ‘Died for France.’”*? Such a mention would have acknowledged her as a member of the French national community and

expressed a full relationship of solidarity between its living and its unjustly dead. Yet she remained an outsider, a Polish-Jewish emigre severed from the

flaxen mesh of both the community of her birthplace and of the country of her

exile.’ Or, more accurately perhaps, the state’s refusal to recognize her meant that in their view she never had been a member, neither in life nor death. She is

thus denied a relational presence with the living. One wonders if Dora Bruder

and her parents also met the same posthumous rejection. Modiano’s Dora Bruder is not an account of how the French national community restored one of its

murdered members to a presence in the here and now. Rather, it is his memory work that saves her from the oblivion of forgetting.

This serves to return us to an important qualifier in thinking about Aeschylus’s

image of the flaxen mesh, the “plural subject” or moi commun of the politi- cal community. Communities can be places of exclusion as well as identity-

conferring and sustaining sites, saving the unjustly treated from silence and

invisibility. The gaps in that mesh, those who are “among us” but not a part

of the enduring philia network, also persist across time, and they too call out

for a response in the “concern for justice.” Our earlier discussion of Ellison’s

Invisible Man set out some of this. Those denied a standing in the civic mesh are

invisible: part of the community’s autobiography yet not saved by the flaxen

net that sustains the presence of others, even the dead. The struggle to bring

them light is the effort to make them visible, that is, to give to them a stand-

ing as members of the community, something denied them in life. It is not

only those then who, embedded in that sustaining fabric of the community,

are owed a response to their unjust fates, but also those whose fate was to be excluded from that community and as such made vulnerable to a wide range of further injustices.”4 As Ellison suggests, that forgetfulness of America’s past

threatens to blind Americans to the deep injustices that are woven into their

founding and that endure the length of the Republic’s existence. The work of

repair here begins with the mending of the flaxen mesh so as to show exclusion

and injustice, past and present, in the full light of day. Though the dead cannot

be given a past in which they were members, their posthumous incorporation

corrects that relational injustice and gives them a new presence in place of the

invisibility that once was their lot.

Conclusion 163

Throughout this study, we have used the language of invisibility, forget-

ting, and silence to try to capture phenomena which threaten to sever the ties

between the living and the dead. If (to use de Kerangal’s phrase) “‘to repair the

living” is in a way to restore their bodies to health, to attend to their interests and material needs, what can it mean “to repair the dead?” We have suggested

one possible response to that question: to repair is to recognize, to acknowledge

the dead as “among us,” enduring claimants on a response to their fates. That

act of recognition also has a deeply relational dimension to it. It affirms their

presence in the “concern for justice”, and sometimes restores their good name.

In so doing it carries out our (few) remaining responsibilities to those who were

“among us” as subjects of justice and in a limited way still are.

“Bringing to light”: this is how we often refer to those acts of recognition and truth-saying that are so central to how we address the dead who suffered

grave injustices when they were counted among the living. In the early pages

of this study, we noted the classical Greek use of the image of light as the repair

of the unjustly dead through giving them (in the words of Aeschylus’s Libation-

Bearers lines 319-20) “A light to compensate for [their] darkness.” Variations on that theme are to be found, as we remarked, in Guzman’s film, “Nostalgia for

the light,” a study of the search for light, from ancient astronomical events, and

a forensic search for light, to identify the bones of the murdered and disappeared of the Pinochet years. Roman Vishniac’s A Vanished World and To Give Them

Light are collections of photographs of Jewish communities in Eastern Europe

shortly before they were to be engulfed by World War Two and the Holocaust.

In the Preface to A Vanished World, Vischniac is quoted, saying “I wanted...

at least to save their faces.”?> He was unable, he continues, to save their lives but

through his photographs he nevertheless was the savior of all that could be kept

present after they were murdered. “Thanks to him [Vishniac] we now know

that a world that has been shattered can survive its own death.” In a similar manner, Ellison, Klarsfeld, and Lanzmann all seek through literature, historical

documentation and film to bring light to those who otherwise would be lost in darkness, in the apparently sealed well of death and the past. They thus fulfill

the roles variously assigned by classical tragedy to the Furies, avengers, children

and other family members, and the city’s courts. That is, they are the saviors

and caretakers of the dead, and their avengers, their “bringers of justice.” In

their “concern for justice,” they save the unjustly treated dead as persons who

share in the justice of their community. This they achieve, in part, by bringing

to light a kind of presence that belongs to the absent dead. That presence, as we

said, is not a repatriation of the whole person, the locus of experience, endowed

with the full panoply of interests, hopes and so on. Rather it is, as portrayed on

the Lucanian vase, the demanding voice of a wronged subject of justice brought

into the light of day by her representatives and other caretakers. Her civil status

is restored to her, which is to say, the recognition of her relational place on the

flaxen mesh of a life-in-common arrayed across time.

164 Conclusion

If past and present members of a political community were as remote from

one another, as Jefferson imagined them to be, like “one independent nation

to another,” then the unjustly dead would be of little interest or concern to the

living. Were there no significant relational ties between us and earlier genera-

tions, then presumably we would have no responsibilities inherited from their

actions, no need to represent them to the present, nor would we have strong

reasons to be concerned for their fates, just or unjust. We would also not likely

see their invisibility to us as a “second death” inflicted upon them. Dead, they

are not among us, and so they have not lost any civic standing in our not

acknowledging them. That essentially relational alteration belongs to a political

community arrayed across time, to the shared world of plural subjects, which

is precisely what Jefferson is denying, in describing past and present genera-

tions as like “one independent nation to another.” In this study, I have urged a

different understanding: one that does not see intergenerational communities

as composed of insular locales, with only the thinnest (or no) relationship to

one another. Rather, in the image we have used throughout these pages, these

generations, the living and the dead, are part of an archipelago, yoked together

by ties sufficiently robust to make it a shared world of justice though of varying

degrees of thickness.

We could think of this (though I have not developed this line of argument

in the present study) on the model of personal identity across change. Here the

idea of a fact of identity gives way to the notion of varying degrees of same-

ness. We can be more or less continuous with an earlier version of our self. In

the case of a persisting community, we find an archipelago-like relationship

between its various generations and their times: a mesh of temporal locales

characterized by alteration, continuity and thinning. Continuity: we argued

earlier that we share a moral world with members of our community, the liv-

ing, dead and not-yet-born. Members of a plural and enduring subject, we

inherit a responsibility for political actions that precede our moment in time.

The actions of people now dead are then in a limited sense ours too, events on

our archipelago, including ones that are fully the work of other generations.

Put another way, and using now Rousseau’s understanding of the citizen as a

“moi commun: the commons that I have absorbed into my self places me in a plu-

ral and temporally extended subject and thereby embeds me in a shared world

that rises above the insular temporal boundaries of the present generation. In

particular, I share a world with the dead: inheriting their deeds, in shame or

pride, bound to them in thankfulness or regret, owing those treated with gross

injustice as much response as is possible given their radical absence. Something

like this can also be said of future persons. They too are absent, yet a presence

among us in the “concern for justice.” They are a presence in the sense that we

have responsibilities towards them, for example, a clean environment, flour-

ishing democratic institutions, a healthy fiscal condition and so on. We are

“yoked” to them though they are not yet living. Again, on the past (or future)

Conciusion 165

as ‘foreign countries” view, these ibiliti

our practices and intuitions tell us thee these abeea es ee

are in fact among us as claimants on our shared world. oe ans » not the world of the senses but of a community of justice.

That presence, we have maintained, has sharp limits. The living are capable of a broad range of repair for injustices done them, as they are also vtilnerable to further injury. Endowed with the possibility of voice and visibility (or capable

themselves of struggling to secure that recognition) they stand able to respond

to injustice. The dead on the other hand cannot resist our neglect or uncon-

cern for them. For that purpose, they need care-givers, representatives. They

also are beyond the reach of the many harms to which the living are vulner- able. Nevertheless our relationships with them and, through that, their stand-

ing among us on that flaxen mesh can be profoundly altered by what we do

or fail to do in regard to the injustices they suffered. The conquered nations of

Europe without the Nuremberg trials, South Africa without the TRC, Central

and Latin America without the Nunca Mads inquiries, Northern Ireland without

the Saville Inquiry: the unjustly dead of these events would have a very dif-

ferent relationship to their community in its living generation, a relationship

of unresolved and therefore ongoing civic injury, a weakening of their ties to

that community. The not-yet-born can of course be affected by what we do

now though they too, like the dead, have no relationship of reciprocity with

the present. They exist for us, are present to us, as the imagined denizens of the

future of our community and that establishes relational bonds which direct us

to act towards them as the subjects of justice they are.

The presence, the actuality, of the dead then is a relational one, rooted in

their being (like the living) constituted by and belonging to a community of

justice that persists across time. When we care for them, remember them, seek to

bring light to their fates, issue apologies to them, and so forth, we do something

that is more than a symbolic gesture. We recognize them, acknowledge them, in

the concern for justice and in so doing we are their saviors, not in their forever

lost embodied selves but rather in their standing as subjects of justice, to whom

recognition and a response are owed. We can of course decline to do this, for

example out of fear of exacerbating social divisions in a transition away from

dictatorship, or of damaging the future by fanning the flames of retribution. We can in other words allow them to languish in invisibility, unacknowledged and

with no ability to respond to or punish our neglect. In doing that, we decline

to be the “saviors” of the dead, the agents of their continued presence. That, as we said, is their second, civic, death. This second death is that of a person whose

“yoked” identify was constituted by being, in part, a moi commun, embedded in

an enduring community. For those excluded from the beginning it is a redou- bling, a confirmation, of their absence. The wronged dead are kept present in

the world through that belonging to an enduring community, acting in relation

to them from a “concern for justice.” Those relational threads are not unwound

166 Conclusion

by death but rather mark them as subjects of justice, owed a recognition of their

fate and whatever other repair can be afforded them.

Notes

1.

emt

10.

11.

12.

13.

14,

15.

16.

Henry James, “The Altar of the Dead,” in Complete Stories of Henry James, ed. David

Bromwich and John Hollander, vol. 4, Complete Stories of Henry James (1892-1898)

(New York: Library of America, 1996), 451. Roland Barthes writes that “Death,

true death, is when the witness himself dies.” Quoted in Jean-Didier Urbain,

Larchipel des morts (Paris: Payot et Rivages, 1998), 191.

. The phrase moi commun is Rousseau’s. Jean-Jacques Rousseau, “Of the Social Con-

tract,” in The Social Contract and Other Later Political Writings, ed. Victor Gourevitch

(Cambridge: Cambridge University Press, 2013), 50.

. Serge Klarsfeld, Mémorial de la déportation des Juifs de France (Paris: Klarsfeld, Serge;

Association des Fils et Filles des Déportés Juifs de France (FFDJF), 1978).

. Vladimir Jankélévitch, “Nous avions beau savoir,” Le Nouvel Observateur (Paris),

May 22, 1978, 84.

. Axel Honneth, “Entmichtigungen der Realitat,” in Das Ich in Wir. Studien zur

Anerkennungstheorie (Frankfurt am Main: Suhrkamp, 2010), 298-305.

. On transmission and this “we” see Anne Muxel, Individu et mémoire familiale (Paris:

Nathan, 2002), 14.

Margaret Gilbert, Joint Commitment (Oxford: Oxford University Press, 2014).

_ And see also Margaret Gilbert, On Social Facts (New York: Routledge, 1989), 431.

. The Burkean character of this view is all the more striking in light of his intense

theoretical hostility to Rousseau.

Gilbert, Joint Commitment, 7, 41, 263.

See especially Annette Baier, “The Rights of Past and Future Persons,” in Respon-

sibilities to Future Generations: Environmental Ethics, ed. Ernest Partridge (Buffalo,

NY: Prometheus Books, 1981), 173. Relatedly see W.H. Walsh, “Pride, Shame

and Responsibility,” Philosophical Quarterly 20, no. 78 (January 1970): 1; Margaret

Gilbert, “Who’s to Blame? Collective Moral Responsibility and Its Implications for

Group Members,” Midwest Studies in Philosophy 30 (2006): 102; Onora O'Neill, Jus-

tice across Boundaries: Whose Obligations? (Cambridge: Cambridge University Press,

2016), 73. See Baier, “The Rights of Past and Future Persons,” 177; Palle Yourgrau, “The

Dead,” Journal of Philosophy 84, no. 2 (February 1987): 87; Peter Singer, “Fam- ine, Affluence, and Morality,” Philosophy & Public Affairs 1, no. 3 (Spring 1972):

231, 234. See Lutz Wingert, “Haben wir moralische Verpflichtungen gegentiber friiheren

Generationen? Moralischer Universalismus und erinnerende Solidaritat,” Babylon:

Beitrige zur jiidischen Gegenwart 9 (November 1991): 90.

James Madison writes of current policies “which interest the unborn,” for example

if the living community acquires a debt in order to repel a conquest, (“the evils

of which descend through many generations.” James Madison, “Letter to Thomas

Jefferson (February 4, 1790),” in James Madison: Writings, ed. Jack N. Rakove (New

York: The Library of America, 1999), 475.

Gilbert, “Who’s to Blame? Collective Moral Responsibility and Its Implications

for Group Members,” 113; Walsh, “Pride, Shame and Responsibility,” 2; Lukas H.

Meyer, Historische Gerechtigkeit (Berlin: Walter de Gruyter, 2005), 243.

Gilbert, “Who’s to Blame? Collective Moral Responsibility and Its Implications

for Group Members,” 114; Ronald Dworkin, “Liberal Community,” California Law

Review 77, no. 3 (May 1989): 493.

17.

18.

19.

Conclusion 167

Gilbert, “Who's to Blame? Collective Moral Group Members,” 113-14. Gilbert, On Social Facts, 431; Gilbert, “Who's to BL i

ae oo , , a 2 é q .

sibility and Its Implications for Group Members,” ones . a Wingert, “Haben wit moralische Verpflichtungen gegeniiber friiheren Gene tionen? Moralischer Universalismus und erinnerende Solidarit3t,” 82. 90 ad cited in the preceding chapter) John Rawls, A Theory of Justice (Cambridge MA. Harvard University Press, 1971), 291. : : See Baier, “The Rights of Past and Future Persons,” 173, 177, 180: Meyer; Histo- rische Gerechtigkeit, 198, 204. :

Responsibility and Its Implicationsfor_ __

. Michael Theunissen, “Die Gegenwart des Todes im Leben,” in Tod und: Sterben

ed. Rolf Winau and Hans Peter Rosemeier (Berlin: Walter de Gruyter, 1984); 119: Wingert, “Haben wir moralische Verpflichtungen gegeniiber friiheren Genera- tionen? Moralischer Universalismus und erinnerende Solidaritit,” 90,

. Wingert, “Haben wir moralische Verpflichtungen gegentiber fritheren Genera- tionen? Moralischer Universalismus und erinnerende Solidaritat,” 83, 85, 88.

See Robert Spaemann, Personen. Versuche iiber den Unterschied zwischen ‘etwas’ und

Semand’ (Stuttgart: Klett-Cotta, 2006), 193. . William Shakespeare, “The Winter’s Tale,” in The Arden Shakespeare, ed. John

Pitcher, Third Series (London: Arden Shakespeare (Bloomsbury Publishing), 2010),

VI.105ff. . Claude Meillassoux, “Etat et conditions des esclaves 4 Gumbu (Mali) au XIXe

siécle,” in Lesclavage en Afrique précoloniale, ed. Claude Meillassoux (Paris: Maspero,

1975), 227-9. . Karl Schlogel, Terror und Traum. Moskau 1937 (Munich: Carl Hanser, 2008), 18.

. Orlando Patterson, Slavery and Social Death (Cambridge, MA: Harvard University

Press, 1982), 38.

. Patterson, Slavery and Social Death, 44. Perhaps this is the underlying meaning of that passage in Ellison’s, Invisible Man, where the protagonist witnesses the strewn

possessions of an evicted family. Psalm 34: 16. Fora classic study of damnatio memoriae in ancient Rome see Friedrich

Vittinghoff, Der Staatsfeind in der rémischen Kaiserzeit. Untersuchungen zur “damnatio memoriae,” Neuen Deutschen Forschungen (Alte Geschichte), vol. 2 (Speyer: Pil-

ger, 1936). . Patterson, Slavery and Social Death, 45, 48.

. See Sanford Levinson, Written in Stone: Public Monuments in Changing Societies, Twen-

tieth Anniversary Edition (Durham: Duke University Press, 2018). . Details of this can be found in General Robert E. Lee’s Parole and Citizenship, Spring 2005, National Archives, May 2, 2019 <www.archives.gov/publications/

prologue/2005/spring/piece-lee>. Gerhard Schrider, 60. Jahrestag des “D-Day,” June 6, 2004, May 2, 2019 <http://

gerhard-schroeder.de/2004/06/06/d-day/>. . Cf, Lukas H. Meyer, “Surviving Duties and Symbolic Compensation,” in Justice in

Time: Responding to Historical Injustice, ed. Lukas H. Meyer (Baden-Baden: Nomos

Verlagsgesellschaft, 2004), 174. . Axel Gosseries, Penser la justice entre les géuérations: de V’affaire Perruche a la réforme des

retraites (Paris: Aubier, 2004), 140-1.

. See Wingert, “Haben wir moralische Verpflichtungen gegentiber fritheren Gen-

erationen? Moralischer Universalismus und erinnerende Solidaritat,” 83, 85, 88.

. Georges Perec, W ou le souvenir d’enfance (Paris: Gallimard, 1993), 63-4.

. Camille Laurens, Cet absent-la (Paris: Gallimard, 2004), 15, 19. Recall Sophocles’s Electra, line 368, where Electra tells her sister that to forget her dead father is to “betray” (prodidomi) him and Antigone line 46 where Antigone

168 Conclusion

40,

41,

42.

43, 44, 45.

46.

47,

48,

49,

50. . Garapon, L’dne portant des reliques: essai sur le rituel judiciaire, 62.

52.

53, 54,

55.

56.

57.

58,

59.

60,

uses the same verb to warn Ismene as to what it would mean to comply with

Creon’s order not to bury their brother. See David-Hillel Ruben, “A Puzzle about Posthumous Predication,” The Philosoph-

ical Review 97, no. 2 (April 1988): 223, 232~3 note 20; Peter Geach, God and the Soul (New York: Schocken, 1969), 72. And relatedly see Meyer, Historische Gerechtigkeit,

121-2; Meyer, “Surviving Duties and Symbolic Compensation,” 182.

Geach, God and the Soul, 66, 72; Ruben, “A Puzzle about Posthumous Predica- tion,” 227, 232-3; Meyer, “Surviving Duties and Symbolic Compensation,” 182.

Emmanuel Lévinas, Autrement qu’étre ou au-dela de l’essence (Paris: Kluwer Academic

(Martinus Nijhoff), 1974), 245 Emphasis in the original. *Ensemble-dans-un-lieu” Lévinas, Autrement qu’étre ou au-dela de essence, 245.

Lévinas, Autrement qu’étre ou au-dela de l’essence, 246. See Antoine Garapon, “La justice et l’inversion morale du temps,” in Pourquoi

se souvenir? ed. Francoise Barret-Ducrocq (Paris: Grasset, 1998), 113; Antoine Garapon, “Préface,” in Réparer l’irréparable. Les réparations aux victimes devant la Cour pénale internationale (Paris: Presses Universitaires de France, 2009), ix; Antoine

Garapon, Des crimes qu’on ne peut ni punir ni pardonner. Pour une justice internatio-

nale (Paris: Odile Jacob, 2002), 240; Antoine Garapon, L’dne portant des reliques:

essai sur le rituel judiciaire (Paris: Editions du Centurion, 1985), 62ft. Amiéry, as we remarked, uses the word Zeitumkehrung or “inversion of time.” Jean Améry, Jen-

seits von Schuld und Siihne. Bewiltigungsversuche eines Uberwiltigen (Stuttgart: Klett-

Cotta, 1977), 116, 123. See also Garapon, “La justice et l’inversion morale du

temps,” 113. Garapon, Des crimes qu’on ne peut ui punir ni pardonner, 250.

Modiano’s 2014 Nobel Prize Lecture details this relationship between absence, place, and justice. Patrick Modiano, Discours @ L’Académie suédoise (Paris: Gallimard, 2014), 26, 28-30. Douglas M. MacDowell, Athenian Homicide Law in the Age of the Orators (Manches-

ter: Manchester University Press, 1963), 123. Sandra E. Marshall, “Victims of Crime; Their Station and Its Duties,” in Managing

Modernity: Politics and the Culture of Control, ed. Matt Matravers (New York: Rout-

ledge, 2005), 108. Marshall, “Victims of Crime: Their Station and Its Duties,” 113.

Garapon, Des crimes qu’on ne peut ni punir ni pardonner, 166. Garapon, Des crimes qu’on ne peut ni punir ni pardonner, 166-7.

Marshall, “Victims of Crime: Their Station and Its Duties,” 108, 113; Etienne Jaudel, Justice sans chatiment. Les commissions Vérite-Réconciliation (Paris: Odile Jacob,

2009), 154. But see John Gardner, “Crime: In Proportion and in Perspective,”

in Offenses and Defenses: Selected Essays in the Philosophy of Criminal Law (Oxford:

Oxford University Press, 2007), 213, 216, 238. Arno Klarsfeld, Papon. Un verdict francais (Paris: Editions Ramsay, 1998), 114.

Christian Tomuschat, Otilia Lux de Coti and Alfredo Balsells Tojo, Guatemala: Memory of Silence: Report of the Commission for Historical Clarification: Conclusion

and Recommendations, Commission for Historical Clarification (Guatemala: CEH,

1999), 49. Tomuschat, de Coti and Tojo, Guatemala: Memory of Silence: Report of the Commission

for Historical Clarification: Conclusion and Recommendations, 54. Lord Widgery, “Report of the Tribunal Appointed to Inquire into the Events on

Sunday, 30th January 1972 [Widgery Report],” April 1972. Her Majesty’s Stationary Office, May 31, 2017 <http://cain.ulster.ac.uk/hmso/widgery.htm#partl>. Lord Widgery, “Widgery Report,” paragraph 95, Summary paragraph 7.

Lord Widgery, “Widgery Report,” Summary paragraph 10.

él.

62,

63.

64.

65.

66.

67.

68.

69,

70.

71.

72.

73.

74,

75.

76.

Conclusion... 169

Lord Widgery, “Widgery Report,” Summary paragraph 8. See our earlier discussion of Kant on posthumous injury and the attack on the dead person’s good name. And see also Don Herzog, Defaming the Dead (New Haven: Yale University Press, 2017).

For example, some family members of the victims, testifying at the trial of Maurice

Papon, wanted to introduce photographs of their murdered love ones, and other expressions of familial solidarity not clearly related to the immediate task of the trial. I discuss this in W. James Booth, Communities of Memory: On Witness, Identity, and Justice (Ithaca, NY: Cornell University Press, 2006), 142-3.

Gideon Hausner. “The Attorney General’s Opening Speech,” in The Trial of Adolf Eichmann: Record of Proceedings, vol. 1 (Jerusalem: State of Israel and Ministry of Jus-

tice, 1992-1994), 62. See also Baier, “The Rights of Past and Future Persons,” 175.

On recognition see Jaudel, Justice sans chdtiment. Les commissions Vérite-Réconciliation,

52-3, 105, 154; Garapon, L’dne portant des reliques: essai sur le rituel judiciaire, 194;

Garapon, Des crimes qu’on ne peut ni puntr ni pardonner, 161.

Serge Klarsfeld, “Pouvoir juger (plaidoirie),” in Archives d’un Procés. Klaus Barbie, ed. Bernard-Henri Lévy (Paris: Globe, 1986), 132, 138. For a critical appraisal of

memory activism in trials see Henry Rousso, Vichy. Lévénement, la mémoire, Vhistoire

(Paris: Gallimard, 1992) and Eric Conan, Le procés Papon. Un journal d’audience

(Paris: Gallimard, 1998). Claude Lanzmann, “‘Shoah’ et la shoah,” in Archives d’un Procés. Klaus Barbie, ed.

Bernard-Henri Lévy (Paris: Globe, 1986), 55. George P. Fletcher, Basic Concepts of Criminal Law (Oxford: Oxford University

Press, 1998), 38. See also Max Pensky’s discussion of solidarity with the dead. Max

Pensky, “Solidarity with the Past and the Work of Translation: Reflections on

Memory Politics and the Postsecular,” in Habermas and religion, ed. Craig Calhoun, Eduardo Mendieta and Jonathan VanAntwerpen (Cambridge: Polity Press, 2013),

309-12. David Cockburn, Other Times: Philosophical Perspectives on Past, Present and Future (Cambridge: Cambridge University Press, 1997), 155. Antiphon, “The Third Tetralogy,” translated by K J. Maidment, in Minor Attic Ora-

tors, Antiphon, Andocides, Loeb Classical Library (Cambridge, MA: Harvard Uni-

versity Press, 1941), 127-8. Much of the literature on transitions emphasizes the importance of dealing with

surviving victims and the future of relations within the political community. “The

direct concern of restorative justice is the moral quality of future relations between

those who have done, allowed, or benefitted from wrong and those harmed,

deprived, or insulted by it.” Margaret Urban Walker, “Restorative Justice and Reparations,” Journal of Social Philosophy 37, no. 3 (Fall 2006): 385. In these pages 1

have argued that we do also have a relationship with the dead victims of injustice that needs to be repaired. Garapon, Line portant des reliques: essai sur le rituel judiciaire, 62ff.

Meyer, “Surviving Duties and Symbolic Compensation,” 182.

Patricio Guzman, Nostalgia for the Light (Nostalgia de la Luz) (2010-2011) Brooklyn, NY: Icarus Films. Avi Baumol, “‘Jestem’: A School in Poland Does Teshuvah,” The Times of Israel,

June 8, 2017: The Blogs, June 14, 2017 <http://blogs.timesofisrael.com/jestem-a-

school-in-poland-does-teshuva/>. Patrick Gaboriau argues that though there are many kinds of presence (present as a living person, as remembered or memorialized and so on), the core faculty is to

be able to respond “present!” to one’s name being called. The dead (I have urged)

are a mute presence, and so need to be represented. Patrick Gaboriau, La présence et

Vabsence (Paris: VHarmattan, 2016), 23, 50, 197-8.

170

77.

78.

79.

80. 81.

82.

83.

84.

85.

86.

87.

388.

89.

91.

92. 93,

94,

95.

96.

Conclusion

Proyecto Desaparecidos, Desaparecidos, July 28, 2017 <www.desaparecidos.org/

main.html>; Proyecto Desaparecidos, Muro de la Memoria, July 28, 2017 <www.

desaparecidos.org/arg/victimas/>.

Garapon, Des crimes qu’on ne peut ni punir ni pardonner, 250.

Garapon, Des crimes qu’on ne peut ni punir ni pardonner, 255-6, 258. See also Rousso,

Vichy. Liévénement, la mémoire, Phistoire, 710.

Compare to Garapon, Des crimes qu’on ne peut ni punir ni pardonner, 258.

Quoted in Owen Bowcott, “Bloody Sunday: Victims’ Relatives Welcome Sav~

ille Report Findings,” The Guardian, June 15, 2010: UK, June 16, 2017 <www.

theguardian.com/uk/2010/jun/15/ bloody-sunday-relatives-saville-report>.

Saville Inquiry, “Testimony of Roslyn Doyle.” In Report of the Saville Inquiry.

AD-0139. https://webarchive.nationalarchives.gov.uk/ 20101017065656/http://report.

bloody-sunday-inquiry.org/evidence/AD/AD_0139.pdf.

Plato, Plato: In Twelve Volumes, vol. 1, Phaedo, translated by Harold North Fowler,

Loeb Classical Library (Cambridge, MA: Harvard University Press, 1977), 115d-e.

See Gaboriau, La présence et Vabsence, 24, 33-4, 65, 198. Gaboriau writes about his

dying father: “Today he said to mother: ‘Tt hurts me to leave you. Then, moved, he

couldn't talk anymore. He didn’t say: ‘I fear the physical pain of dying.’ He spoke of

dying as of a relationship to others. He expressed the suffering that belongs to the

rupture . . . that he would never know their future . . . to abandon others without

knowing their fate... . Not a word about objects... . It’s the others who matter,

not the bank account, real estate.”

Xenophon, “Memorabilia,” translated by B.C. Marchant, in Xenophon in Seven Vol-

umes, vol. 4, Memorabilia, Oeconomicus, Symposium, Apology (Cambridge, MA: Loeb

Classical Library, 1968), 4.8.11.

This is the same verb Sophocles uses in Electra’s query, “Can it be honorable not

to care [for the dead]?” Sophocles, The Complete Greek Tragedies, edited by David

Grene and Richmond Lattimore, vol. 2, Electra, translated by David Grene (Chi-

cago: University of Chicago Press, 1992), lines 236ff.

Plato, Plato: In Twelve Volumes, vol. 1, The Apology of Socrates, translated by Harold

North Fowler, Loeb Classical Library (Cambridge, MA: Harvard University Press,

1977), 38c. Xenophon, “Apology of Socrates to the Jury,” translated by OJ. Todd, in Xenophon

in Seven Volumes, vol. 4, Memorabilia, Oeconomicus, Symposium, Apology (Cambridge,

MA: Loeb Classical Library, 1968), 29, 34.

See Plato, The Apology, 39c—-d.

. Perec, W, 63-4.

Perec, W, 63.

Perec, W, 62.

Perec writes: “I could have been born... in Haifa, Baltimore, Vancouver/I could

have been Argentinean, Australian, English or Swedish/ but in the almost unlim-

ited range of possibilities, /only one thing was simply forbidden:/ that of being born

in the country of my ancestors, in Lubartov or Warsaw,/and to grow up there in

the continuity of a tradition,/of a language, of a community.” Georges Perec, Ellis

Island (Paris: P.O.L., 1995), 59.

As I remarked earlier, quoting Margaret Walker, “restoration” refers to repairs that

move relationships in the direction of becoming morally adequate, without assum-

ing a morally adequate status quo ante.” Walker, “Restorative Justice and Repara-

tions,” 384.

Roman Vishniac, “Preface,” in A Vanished World: Roman Vishniac (New York: Far-

rar, Straus, and Giroux, 1983), Xi.

Elie Wiesel, “Preface,” in To Give Them Light: The Legacy of Roman Vishniac, ed.

Marion Wiesel (New York: Simon & Schuster, 1993).

AOR ee

rr

|

Conclusion (171

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BOO

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aenn

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INDEX

Note: Page numbers in italic indicate a figure on the corresponding page.

absence 1-16, 21—8, 28n17, 46-52, 55-8, 58n3, 58n5, 97-106; absent victims

423, 53, 70, 74, 102, 104-5, 116-21,

155-6; archipelago of absence and presence 2-4, 11, 15, 25-6, 142-3,

155, 161; broad issues of 158; distance

and 40; in Greek tragedy 4, 98-9, 111;

intergenerational justice and 68~76;

in Invisible Man 13, 23-5, 33n102,

34n130; invisibility and 13, 17, 23;

memory and 9, 117-18, 155; not “dust

and nothingness” 105, 58n3, 119;

Platonic account of 3 Aeschylus 1, 4-5, 115~16; as “care-taker

of the dead” 100, 126n72; “flaxen mesh” 108, 110-14, 120, 140, 144,

154-5, 159, 161-3, 165; Oresteia 8, 54,

99--103, 105-6, 110, 113-15, 115-16,

117; see also Agamemnon; Eumenides;

Libation-Bearers African Americans 21; material culture

and black history 23; reparations 44—5;

see also Invisible Man Agamemnon 8~10, 99-103, 106-7, 110-12,

125n67, 140 Agamemnon (Aeschylus) 100, 106

Améry, Jean 154 anagnorisis (recognition) 111 Antigone 9-10, 71, 111, 140-1, 167n39

Antigone (Sophocles) 54, 111, 127n90,

140-1, 167n39

Antiphon 2-3, 69, 115, 120

Apology 161 Arendt, Hannah 70, 86ni, 116, 129n112

Areopagus 102, 113, 157

Argentina 43, 120, 131n133, 156

Aristotle: on community 109-11; citizens and philia 111, 127n90; on the dead

1, 76; draughts board metaphor 141;

on imagination (phantasia) 32n79,

intergenerational debt 51, 61n70, 76;

on memory 117; on regime change

and liability for the past 51, 61n70, 84;

on souls 32n79; “yoked” identity 109,

143, 148, 150, 159, 161, 164-5

Athens: Areopagus of 102, 113, 157; death

of Socrates 160; democracy in 102; family in 149; law vs. traditional vengeance in

115-17, 127n101, 128n104; Pericles 6;

revolution and regime change in 84

Auschwitz 11-12, 31n67, 148, 153

autopsia 3

Baldwin, James 17, 23, 25-6, 32n83,

33n101, 33n104 Barbie, Klaus 153 Barthes, Roland 12in2, 166n1

Benito Cereno (Herman Melville) 14,

32n86, 59n12

Blair, Tony 40, 43, 151~2

Bloody Sunday 40, 42-3, 119, 121,

150-3, 157; Saville Inquiry 42-3, 117,

176 Index

121, 150-3, 155, 158, 165; Widgery Report 151

bodies: Polynices’ 9, 111, 12794, 141, 147;

Socrates’ indifference to the treatment of

his 159-60; see also dead, the; death; souls

Boxill, Bernard 44-5

Brooklyn-Budapest painter 124n43

see also Lucanian vase

Burke, Edmund 53, 79-83; democratic

modernity and the past 49; on families

and intergenerational justice 80, 90n84,

90n85, 92n115; on the past as “ballast”

50, 54

“Cambridge” changes 148

Certeau, Michel de 69

children: intergenerational justice and

46-7, 50, 108-10, 140-2; see also family

Chirac, Jacques 107

citizenship: community as plural subject

16, 144-4, 162, 164; in an enduring

community of justice 83-5, 142-7,

453-4, 157; personhood and 73-4; philia

among citizens 141, 127n90; recognition

of 20, 26, 72-4, 76-8; Rousseau 143,

166n2, 164; see also political community

civic death 118, 146, 147

Cixous, Héléne 100, 106, 130n115

Clytemestra: justice for 102-6, 103,

409-19, 126n85, 145, 149-50, 152;

murder of 99-102; trial of Orestes

99-100, 149-50, 157

community: Aristotle’s “yoked” identity

109, 143, 148, 150, 159, 161, 164-5; as

“flaxen mesh” 108, 110-14, 120, 140,

144, 154-5, 159, 161-3, 165; forensic

identity of 50-1, 53; mot commun 165,

166n2; philia 105, 110-14, 127n90,

140-3, 159, 161-2; as plural subject 16,

141-4, 162, 164; see also families; identity

across time; political community

Creon 127090, 127n94, 140-1, 147, 168n40

Crito (Plato) 161

dead, the: caring for the 158-66; harming

the 145-53; living with the 142-5;

presence of the 102~29; as a subject of

justice 8, 70, 72-4

death: naturalism about 1, 70-1; as

non-being 55; relationship between

the living and the dead 75; “second”

27, 71, 73, 106, 112-13, 145-6, 153,

164—5; soul after 3; the “undiscovered

country” 2; see also absence, memory;

civic death

Deetz, James 23

democracy: Athenian 102; modern 49-50,

53-4, 84-5; transition to 120, 131n133

Derry, Northern Ireland see Bloody Sunday

Dora Bruder (Patrick Modiano) 1i-13,

17-18, 25-8, 32n75, 73, 149, 162

Du Bois, W.E.B. 17, 23

“dust and nothingness” 7-10, 29n18, 40,

58n3, 105, 119-21, 152, 159-61

Dworkin, Ronald 81, 84

Fichmann, Adolf 116, 121, 129n112, 153

Electra 1-10, 99-100, 106-14, 126n85,

140-1, 167n39; “dust and nothingness”

7-10, 29n18, 40, 58n3, 105, 119-21,

152, 159-61

Electra (Sophocles) 1-10, 29n18, 170n86

Bliot, T.S. 15, 21; Four Quartets 15

Ellison, Ralph: Juneteenth 15, T.S. Eliot

and 15, 21; see also Invisible Man

Eumenides (Aeschylus) 99-107, 114-15,

119, 126n82, 149, 157; as depicted in

the Lucanian vase 103-5, 103, 109,

413, 117-19, 142, 145, 149-50, 163

family 4~7, 9; absence and presence in

death 97-8; of Bloody Sunday victims

40, 42, 158; Burke's intergenerational

family commonwealth 80; children

and intergenerational justice and

9-10, 46-7, 50, 108-10, 140-2; as

continuity through time 18; of the

disappeared 155-6; in Invisible Man

19-23; motivational assumptions in

47-8; murders within 122n16, 149;

obligation in Macbeth 6; photographs

40, 69, 73, 16963; see also community;

intergenerational justice

Feinberg, Joel 75

“flaxen mesh” 108, 110-14, 120, 140, 144,

454-5, 159, 161-3, 165; see also identity

across time; relational presence

Fletcher, George 120

forgetting: as betrayal 9, 167n39;

forgetting and blindness metaphors 5-9;

reconciliation 14, 55, 62n88, 72; as a

“second death” 27, 71, 73, 106, 112-13,

145-6, 153, 164-5; see also memory;

relational presence

Furies 4-5, 8-10, 109-17, 121, 122n16,

126n82; Clytemestra and the 5, 99-102,

103, 126n85

Garapon, Antoine 118, 149, 157

Gardner, John 120

Germany: responsibility for the Holocaust 7, 30n48, 59n11, 71, 81

84, 129n112 Gilbert, Margaret 142-4 Gosseries, Axel 44, 58n9, 63n98, 70, 76

Greece see Athens; tragedy Grossman, David 32n85, 52, 101

Guatemalan CEH (Historical Clarification Commission) 150

guilt 4-8; collective 53; inherited guilt

and the state 83—4; intergenerational ransmmission of 52-3, 108~9; in literature

—25, 17, 25, ; visibili ware 30n41, 33n101; visibility

Guzman, Patricio 163

Habermas, Jiirgen 7, 71, 107

Hamlet (Shakespeare) 2-3, 6, 57, 72

Hausner, Gideon 55, 62n87, 116, 129n112, 153

Heidegger, Martin 29n27, 91n104 ierz08, Don 88n20

istorical injustice 2, 26, 42~ — 50 aan 42-6, 48-57, 71,

Hobbes, Thomas 69

Holocaust 98, 156, 163; Auschwitz 11-12

31n67, 148, 153; Eichmann trial 116

121, 129n112, 153; France’s role in 107

150; Germany’s responsibility for the 7, 30n48, 59n11, 71, 81, 84, 129n112;

see also Dora Bruder Honneth, Axel 2, 26, 32n82, 70, 142

Horkheimer, Max 56

Hume, David 56, 69, 74, 79, 97

identity across time 13-9, 24-5, 44, 51-5

69, 75, 78, 82, 84, 86, 105, 107, 109, 111-13, 141-44, 150, 152, 161, 164

imagination 1, 13-14, 32n79, 69

intergenerational justice 9~10, 46-52

55~7, 70, 108-10, 140-2; absence and

68-76; Burke on 80, 90n84, 90n85

ae guilt 83~4; Nietzsche on —3; Rawls on 46~-9, 52—

90n84, 98-9 SES Cond, invisibility 11; the disappeared 146,

149-50, 155-6; forgetting and blindness metaphors 5—9; see also citizenship;

Invisible Man

Invisible Man (Ralph Ellison) 11, 13~27

32n83, 44, 59n12, 145; absence in 13, 23-5, 33n102, 34n130; family in

19-23, Honneth on 32n82; memory

in 12-16, 19-26, 34n130, 117, 127n96;

posthumous justice in 162

Index. 177

Iphigeneia 110, 112

Ismene 5, 9, 111, 168n40

Jankélévitch, Vladimir 142

Jefferson, Thomas 50-1, 53-4, 69, 140,

Jospin, Lionel 107

Juneteenth (Ralph Ellison) 15 just savings principle 47, 52, 69~70, 77 justice: language of restoration 35n139

125n57, 146, 150-2, 154, 170n93; memory work and 153-6; r i 44—5; subjects of 12-13, S67 117-20

146, 150, 153-5, 158, 163: see also

intergenerational justice; law

Kant, Immanuel 7; Kantian critique of

Rawls’ closed community 90n74;

Kingdom of Ends 76-9, 141-3;

Metaphysics of Morals 76~8; on the

noumenal 76—9, 90n77; personhood

26; on posthumous reputation 76-9; on souls 76-8; universality of Kantian norms 90n81

Kerangal, Maylis de 8

Klarsfeld, Ammo 150 Klarsfeld, Serge 28, 142, 150, 153, 163

La Rochefoucauld, Francois 71

Lanzmann, Claude 117-18, 130n125

153, 163 Laurens, Camille 97-8, 100

law: Athenian 102, 115-17, 127n101

128n104; blood crimes 10; Saville Inquiry 42~3, 117, 121, 150-3, 155

158, 165; trial of Eichmann 116, 121

129n112, 153; trial of Orestes 99-100

149-50, 157; trial of Papon 121, 129n112, 150, 153, 169n63; Truth and

Reconciliation process (TRC) 43-4 55, 118, 154, 165; vengeance vs. 115-17 127n101, 128n104; see also guilt; justice;

political community Lévinas, Emmanuel 56, 98, 148-9

Libation-Bearers (Aeschylus) 4-5; Chorus

in 5, 31n56, 100, 106, 108; justice for

the dead 108-14, 140, 99-100 liberalism 47-8, 60n47, 83

literature: forgetting and blindness

metaphors 5~9; guilt in 11-25, 17, 25

30n41, 33n101; metaphors of light/dark

3-11, 99-106, 155-6, 162~4; writing and memory 161-2; see also tragedy

Locke, John 51, 158

Loraux, Nicole 6, 104

j a.

178 Index

Lucanian vase 103-5, 103, 109, 113,

117-19, 142, 145, 149-50, 163; identity

of creator 124n43

Macbeth (Shakespeare) 6, 30n41

Macé, Gérard 70 Madison, James 50—1, 53, 166n14 matricide 99, 105, 110, 112, 122n15

McElhinney, Kevin 40, 42, 104, 121,

152, 158 Meillassoux, Claude 145-6

Melville, Herman 14, 32n86

memory 4-5, 8-9; collective 26, 12796;

erasure 145-7; imagination and 13-14,

as an inversion of absence 117-18; in

Invisible Man 12-16, 19-26, 34n130,

117, 12796; justice and 16, 50-1, 53,

153-6; memory work and justice 153-6,

memory-justice 4, 154-5; photographs

and 40, 69, 73, 156, 163, 169n63;

writing and 161-2; see also forgetting;

relational presence; identity across time

metaphors of light/dark 3-11, 99-106,

155-6, 162-4 Meyer, Lukas 44-5, 58n9, 75

miasma (moral pollution) 4, 6-8, 30038,

83, 108-9, 115 Mitterrand, Francois 107

Modiano, Patrick 11-13, 17-18, 25-8,

32n75, 73, 149, 162 mot commun 165, 166n2

My Grandfather and the Tragedy of ‘Jewish

Vienna (Peter Singer) 98

naturalism 1-3, 78, 142; critique of 158;

death and 70-1 Nietzsche, Friedrich 21, 81-3

Northern Ireland see Bloody Sunday

nostalgia 155

Nostalgia for the Light (Patricio Guzman)

, 155, 163 Nozick, Robert 45, 48

Nunca Mas inquiries 43, 165

Nuremberg trials 165

O’Neill, Onora 46

Oedipus 5-8, 10, 25-6 Oppenheim, David 98

Oresteia 99-103, 105-6, 110, 113-17

see also Agamemnon; Eumenides;

Libation- Bearers

Orestes 5, 7-9; in Libation-Bearers 99-102,

108-17, 126n85; on the Lucanian

vase 103, 104—6, 145; trial of 99-100,

149-50, 157

Oslo accords 150

Paine, Thomas 49-50, 53, 82-3

Papon, Maurice 121, 129n112, 150, 153,

169n63 Patterson, Orlando 146

Peloponnesian War 6 Perec, Georges 31n67, 147-8, 162, 170n93

Pericles 6

personhood 20, 26, 73—4, 144, 154

Phaedo 2—3, 28n17, 86n11, 158-61

philia 105, 110-14, 127n90, 140-3, 159,

161-2 Pinochet, Augusto 155, 163

Plato 2-3; Apology 161; caring for the

dead 158-61; cave of 5; Crito 161;

Phaedo 2-3, 28n17, 86n11, 158-61;

Platonic account of absence and justice 3; Platonic republic as an

ideal 78; see also Socrates

political community: liberalism 47-8,

60n47, 83; regime change 61n70, 84-5,

107; see also community; democracy; law

Polynices 9, 111, 127n94, 141, 147

posthumous: harm 145-53; injustice 74-6;

justice in Invisible Man 162; misfortunes

72; Dora Bruder 162; reputation 152, 160

presence: archipelago of absence and

presence 2-4, 11, 15, 25-6, 142-3, 155,

161; of the dead 102-9; see also memory

Rawls, John; closed community of

69-70, 90n74; intergenerational

justice to 46~9, 52-3, 60n47, 90n84,

98-9; just savings principle of 47, 52,

69-70, 77 Reflections on the Revolution in France

(Edmund Burke) 53

Renan, Ernest 62n88

reparations 44-5

Republic (Plato) 6

relational presence 52, 105-14, 141-45,

147-52, 154, 156, 161-65 revenge see vengeance Ricoeur, Paul 54

Rousseau, J.J. 143, 166n2, 164

Saville Inquiry 42-3, 117, 121, 150-3, 155,

158, 165 Schlogel, Karl 32n75, 106, 145-6

Schroder, Gerhard 147

“second death” 27, 71, 73, 106, 112-13, 145-6, 153, 164~5

Shakespeare, William: Hantlet 2-3, 6, 57, 72; Macbeth 6, 30n41; Winter’s Tale, The 145-6

Shoah (Claude Lanzmann) 117-18 Simmias 28n17, 159

Simondon, Michéle 4 Singer, Peter 98

Socrates 2—4; on bodies and souls 2-3,

28n17, 86n11, 158-9; death of 86n11; family and friends of 1589, 161; on

justice 3-5, 28n17; Phaedo 2-3, 28n17. 86n11, 158-61

Sophocles: Antigone 54, 111, 127090, 140-1, 167n39; Electra 1-10, 29n18

170n86 souls: Arendt’s view of 86n1; Aristotle’s

view of 32n79; imagination and the 32n79; Kant’s view of 76-8; religious view of 51-2; Socrates’ view of 2-3,

28n17, 86n11, 158-9; see also bodies South Africa 43~4, 72, 84: Truth and

Reconciliation process (TRC) 43-4, 55, 118, 154, 165

Spinner-Halev, Jeff 44, 46 Stalin, Joseph 106, 145-6

Index 179

Theunissen, Michael 145 Tireseus 8 tragedy 4—6; absence in 4, 98-9 111;

anagnorisis (recognition) 111; the : Chorus 5, 8, 31n56, 100, 106 108:

t role of the future in 8, 29n20, ‘ ruth and Reconciliation pro 43—4, 55, 118, 154, 165° ess (RC

a: undiscovered country,” past as 2

vengeance 6-9, 54-5, 99-102, 108-16: criminal law vs. traditional 115—17 127n101, 128n104; memory and 9

155; see also Furies; law Vishniac, Roman 163; A Vanished World

163; To Give Them Light 163

Walker, Margaret 35n139, 125n57, 170n93

Widgery Report 151

Williams, Bernard 4

Winter’s Tale, The (Shakespeare) 145-6

World War II 147; see also Holocaust

Xanthippe 158-61 Xenophon 160-61

)