From the Editors: History and the Courtroom: Trials and Errors

15 Ab Imperio, 3/2007 From the EDITORS We are constantly tempted to find “a verdict of history” behind a historian’s judgment, and to compare historical verdicts to legal indictments . Indeed, by improving the incomplete knowledge of the past, by uncovering lacunae and zones of silence covered by the false or superficial testaments of contemporaries, the historian acts simultaneously as a legal investigator and a judge who pronounces the ruling. That is why this issue’s theme focuses on the intersection of the interests of the present, and knowledge (or the silencing) of the past appears under the title “History on Trial.” As the articles in this issue remind us, there are fundamental differences between a historical exploration and a legal investigation. Besides their obvious differences in procedures, historiography constantly strives to reconceptualize the past in the context of present-day perceptions and interests, while jurisprudence does not recognize the retroactive application of novel legislation. The field of legal judgment is limited by those spheres where consensus already exists and appears in the form of a codified legal norm, while historical judgment is not limited by the framework of consensus. Thinking about the past, the historian has the ability to “issue a verdict” or to express ethical condemnation even if the immediate circumstances and “perpetrators” have long become a matter of the past, even in cases where it is impossible to judge a phenomenon from a purely legal point of view. HISTORY AND THE COURTROOM: TRIALS AND ERRORS 16 From the Editors The clearest example of such phenomena is represented by the hisotriography of twentieth century totalitarian regimes. Moreover, the thrust of historical judgment is directed at a reconstruction of social, political and cultural grounds, and of the sovereign subject, with respect to which the legal consensus appears as a “superstructure.” The way in which historical knowledge functions encompasses both the possibility of legitimation and relativization of the existing consensus. Thus, historical judgment as “history ’s tribunal” has significant potential power with respect to law, because historical judgment is capable of both asserting and exposing the sovereign foundations of society and the legitimacy of its political pretensions. It is not a coincidence that a historical judgment about the principally new character of twentieth century crimes became the foundation for philosophical and legal substantiation (in particular, by Hanna Arendt) of post-war juridical norms regarding crimes “against humanity.” In imperial studies the metaphor of the past as adversarial jurisprudence is particularly appropriate: empire is the space of claims and pretensions, assertions and dismissals of identities and related rights, sovereignty, and property (be it territory, resources, language space, or the very past itself). Any judgment of empire’s past inevitably emerges as a judgment about the present and touches upon the interests of groups that are themselves founded on a certain vision of the past. Inviting our authors to reflect upon the subjects of history’s judgment and what might be the outcomes of the intersection of the domains of historical and legal judgment so characteristic of today’s world, we consciously went beyond the traditional problems of the history of memory (as cultural representations of the past).1 We were interested in looking at the transformation of historical knowledge, how its nature and societal functions change when it becomes a ground for a legal judgement, how it may be employed in (moral) indictments by well-informed “descendants,” and when it becomes a reason for the state and society to sanction the restitution of justice and compensation for injustices of the past. History, like memory, is by defini1 Four issues of Ab Imperio in 2005 were dedicated to the problem of historical memory. The initiative of AI to launch a large-scale study of the mechanisms of historical memory in the context of the post-Soviet societies has been supported by our colleagues from the Moscow-based journal New Literary Review and magazine NZ (cf. special issues: “Memory of the World War II 60 Years Later: Russia, Germany, Europe”. NZ. 2005. No. 40-41; “1905: A Hundred Years in Oblivion”. NZ. 2005. No. 44). Historical memory became the topic of the regular Russian-American colloquium in St. Petersburg in June 2007...