The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread," wrote French intellectual and social critic Anatole France in The Red Lily in 1894 and in doing so he summarized the often great distance that exists between laws and people's concepts of justice and truth. Justice is a slippery concept and the truth even more so - and this is perhaps nowhere more evident than in the practices of the "truth commissions" established in a number of countries newly accustoming themselves to democracy. The Orwellian sound of "truth commission" is not inappropriate, for the connection between the actions of these commissions - in places like Argentina, Chile, El Salvador, Guatemala and South Africa - and the truth of experience or any sense of absolute justice was both tenuous and complex. This paper explores that relationship between these commissions and larger questions of truth and justice, of memory and forgetting.
We should begin by noting something that is so obvious that it often goes unnoted: Laws reflect not universal, natural conditions but particular cultural and social constructions. Laws reflect the consensus of a society at a given moment in time, or rather they reflect the consensus of the leaders of a society at a given moment in time. That leadership can be very narrowly defined - as in an absolute monarchy, in which the only vote that counts is that of the king or queen - or relatively broadly define - as in a direct democracy, where the opinion and vote of each citizen is worth the same as the opinion and vote of every other citizen.
And yes, even as we recognize the ways in which laws are limited, they are an important part of our understanding of ourselves as a people, they form a part of our sense of both self and collective identity. One of the things that defines each one of us in a given society (at least according to democratic traditions) is that we are each governed by the same laws. When this compact is broken, it breaks open the sense of identity that each one of us has. Both identity and memory become fragmented as Osriel (1995) argues. When the structures of the state warp around us, we no longer understand who it is that we are.
In her introduction Minow (1998) argues that there are only a few key reasons for such collective actions in pursuit of the truth:
Perhaps there simply are two purposes animating societal responses to collective violence: justice and truth. Justice may call for truth but also demands accountability. And the institutions for securing accountability - notably trial courts - may impede or ignore truth. Democratic guarantees protecting the rights of defendants place those rights at least in part ahead of truth-seeking; undemocratic trials may proceed to judgment and punishment with disregard for particular truths or their complex limitations beyond particular defendants. Then the question becomes: Should justice or truth take precedence? Of what value are facts without justice? If accountability is the aim, does it require legal proceedings and punishment? Do legal proceedings generate knowledge?
Truth commissions might be seen as a way in which to right this disintegration of memory and identity, but this is too often not the case. Truth Commissions suggest that there are remedies for the past - that it is possible to find justice for past wrongs and then to move on. But this does not square with the memories of those who were tortured or those whose loved ones simply disappeared. Truth Commissions suggest that there can be a bridge made between the before and after that exists in people who have been traumatized, but in reality this is often not the case, as Minow (1998) suggests. For most people who have witnessed terrible things there will always be a before and an after, and for them truth commissions tend to stand in a type of no-man's land between these too, as much a barrier as a bridge.
Truth can sometimes not be salvaged from vengeance, Minoe (1998, p. 13) argues, nor perhaps should it be:
Although [vengeance] may sound pejorative, it embodies important ingredients of moral response to wrongdoing. We should pursue punishment because wrongdoers should get what is coming them; this is one defense - or perhaps restatement - of vengeance. Vengeance is the impulse to retaliate when wrongs are done. Through vengeance we express our basic self-respect...Vengeance is also the wellspring of a notion of equivalence that animate justice. Recompense, getting satisfaction, matching like with like, giving what's coming to the wrongdoer, equalizing crime and punishment, an eye for an eye; each of these synonyms for revenge implies the proportionality of the scales of justice.
In order to understand the power and the powerlessness of the truth commissions of the late 20th century, it is important to understand in general how it is that legal systems work, for, as Trouillot suggests, often the entire weight of expectation about the rule of law of an entire people comes to rest on the workings of truth commission. But to understand how the law works we must understand a little more generally how it is that culture itself works, for the legal code of any society is simply one expression of the cultural values of that culture. Culture is the collection of beliefs, habits, traditions, rules and material culture that binds together a group of people. Culture provides both a sense of belonging to people who identify with a group (I am an American; I am an Iraqi) as well as a sense of who does not belong to that person's group (I am an American and not an Iraqi; I am an Iraqi and not an American). This dual purpose of cultural identity (which both tells us who we are and whom we are different from) is important to understand because it is reflected in as well as maintained by sets of legal codes. Sometimes the use of laws to define cultural identity (as well as to define proper and allowable behavior for members of a cultural group) are relatively straightforward.
In the case of people who have been visited by genocide, by torture, by war, by an inhumane and unjust government that claims to speak and act in their name, the use of the law to define truth - again in the name of and in the service of the people - is never simple because the people' relationship to themselves, to their nation, to history has become ambivalent.
Human beings participate in history both as actors and as narrators. The inherent ambivalence of the word "history" in many modern languages, including English, suggest this dual participation. In vernacular use, history means both the facts of the matter and a narrative of the those facts, both "what happened" and "that which is said to have happened." The first meaning places the emphasis on the sociohistorical process, the second on our knowledge of that process or on a story about that process (Trouillot, 1995, p. 9).
The distinction between being an actor in and an observer of history - which often shifts in the lives of each individual - is made even more complex by the machinations of truth commissions, as Trouillot suggests. The primary purpose of truth commissions can be seen as an attempt to substitute one narrative of history and of identity for another and the extent to which this substitution fails means that either specific individuals or entire populations will find that something of their identity has been stolen a second time. Truth commissions, Trouillot (as well as Maier, 2000 and Haynor, 2002) attempt to elide that distinction in a way that can seem extremely treacherous to those whose own sense of self - as both actors and narrators - are being changed. Truth commissions argue that they possess and can distribute both versions of history.
Thomas Aquinas argued that "Where there is no consensus, there can be no law," but this is simply not the case in places where the mass graves stretch across the land. Perhaps he meant to argue that "Where there is no consensus, there should be no law." But this is also a tenuous argument to make at best. It seems unlikely that in any large society there will be consensus on all but a few ideas (and perhaps not even these). And yet if we are not all to descend into a Hobbesian state in which we are faced each day with the war of all against all, we must have laws that have the power of sanction behind them. But can this still be the case when the rule of law has been made ridiculous by the slaughter of the innocents? The authors that we are considering here - and history, too - give a mixed response to this.