Indiana Law Journal

Document Type


Publication Date

Summer 2005

Publication Citation

80 Indiana Law Journal 605 (2005)


This Article posits the existence and pervasiveness of an official public (or State) memory that is primarily constructed using public law devices and statements of official policy. While official public memory serves the purposes of social control and stability, it also seeks to mask contestation and is, accordingly, neither complete nor authentic. Using philosophical, scientific, and literary sources, this Article demonstrates how the affective (emotional) memory that is unique to individuals creates a permanent potential for contestation and authenticity and therefore sets a natural conceptual limit to the power of officially managed memory to contrive the past. To help establish this Article's initial claim, Part I provides as an illustration of the phenomenon of official public memory the legal and policy means by which the Austrian government sustains an official public memory ofAustria as a victim State of Nazi aggression. Part H builds upon the Austrian illustration as well as examples from other States to expose the characteristic patterns-selectivity, constructivism, mythmaking (mythopoesis), incorporation, and presentism-by which government elites create and maintain a contrived ideological account of the past. It shows how States exploit law and the legal process in this task. In response to Parts l and I, the remainder of this Article (Parts IlI-V) is a search for a concept of public memory that provides a more contested (and authentic) account of the past, and thus a challenge to the law-sustained contrivance of official public memory. Others have sought to open up contestation by proposing actions that occur entirely within the construct of law and legal institutions. This Article broadens the inquiry by seeking to support contestation (and authenticity) using the work of other disciplines. Part III begins this quest for an alternative discourse by exploring the discipline of history, which is characterized by archivistic efforts to discover the "true" past. History's unending revisionism, however, makes it unlikely to serve the purposes of social control and stability that give official memory its power. And history's relativist biases makes it no more likely than official memory to create a broadly accurate portrait of the past. Part

IV considers whether social philosophy offers a more accessible paradigm of public memory, one that is grounded in the lived experience of individuals. In particular, Part IV draws on the concept of non-official "collective memory" expounded by French social philosopher Maurice Halbwachs as an alternative account of public memory. But this, too, is deficient as an authentic counterpoint to official public memory, because Halbwachs fails to exclude the effects of that very contrivance from his theory. Nor, importantly, does he account in his social theory of memory for a unique feature of individual lived experience, the scientifically verified condition of emotional or affective memory. Part V seeks to use literature, and in particular the theory of transcendent memory offered by Marcel Proust in In Search of Lost Time, to meet the ontological challenge of demonstrating how affective memory is the feature of individual lived experience that is most likely to sustain a reconceptualized public memory. By representing affective memory as an autonomous condition, this Article sets a cognitive, definitional, and even scientific limit to the power of official memory. Rather than finding a discourse to displace official public memory, therefore, this Article reaches the reassuring conclusion that affective memory allows an understanding of official public memory as intrinsically confronting a potential for contestation, and therefore for authenticity.