Law as Memory

Jonathan Crowe*, Constance Youngwon Lee

*Corresponding author for this work

Research output: Contribution to journalArticleResearchpeer-review

3 Citations (Scopus)

Abstract

This article explores the claim that law is characteristically in search of the past. We argue that the structure of memory defines our relationship with the past and this relationship, in turn, has important implications for the nature of law. The article begins by examining the structure of memory, drawing particularly on the work of Henri Bergson. It then draws out the implications of Bergson’s theory for the interplay of past and present, highlighting the challenges this poses for law’s project of retrieval. Law, as an artifact, seeks its origins in human action, but this often yields a static view of legal discourse as the retrieval of pivotal moments. Bergson, by contrast, shows us that past and present influence each other dynamically, giving rise to an integrated whole. The article concludes by exploring the potential for law to transcend the structure of memory. We argue that even beyond the limits of memory legal reasoning encounters a kind of residue left by the ethical foundations of law. Law searches vainly for the past, but what it finds is itself.

Original languageEnglish
Pages (from-to)251-266
Number of pages16
JournalLaw and Critique
Volume26
Issue number3
DOIs
Publication statusPublished - 1 Nov 2015
Externally publishedYes

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