The Dead, the Law, and the Politics of the Past

Abstract

This article explores the role of law in cultural and political disputes concerning dead bodies. It uses three interconnecting legal frameworks: cultural and moral ownership, commemoration, and closure. It begins with a critique of the limitations of the private law notion of`ownership' in such contexts, setting out a broader notion of cultural and moral ownership as more appropriate for analysing legal disputes between states and indigenous tribes. It then examines how legal discourses concerning freedom of expression, religious and political traditions, and human rights and equality are utilized to regulate the public memory of the dead. Finally, it looks at the relationship between law and notions of closure in contexts where the dead have either died in battle or have been`disappeared' during a conflict, arguing that law in such contexts goes beyond the traditional retributive focus of investigation and punishment of wrongdoers and instead centres on broader concerns of societal and personal healing.

Legitimacy of Death: National Appropriation of the Fallen

“…As Kieran McEvoy and Heather Conway (2004, 546) claim, the “narrow private law of ownership fails to take account of the centrality of the dead as sites of important political and ideological conflicts.” Of course, as soon as the Allied governments proclaimed their policies regarding the return of the dead, the legality of their decisions was contested on both grounds. In the USA, those who argued for national appropriation of the dead were in opposition to the government’s decision to bring the dead back to their families.…”

“…Since bodies are such efficient symbols, there seems to be a consensus that, as McEvoy and Conway (2004, 561) argue, “[p]oliticized communities, organizations, and even states will almost inevitably incorporate their dead into their own political culture and thereby use them to reassert key themes of political ideology or political action.” Hence, it is not surprising that the question of who owns the dead becomes an arena of political conflicts and confrontations. The question of who owns the dead is “inextricably linked to the notion of who ‘owns’ the past” (McEvoy and Conway 2004, 545). “Manipulating physical remains,” Verdery (1999, 113) claims, “is a visual and visceral experience that seems to offer true access to the past.”…”

“…A dead body’s corporeality and multivocality are not sufficient factors to allow its political manipulation. In order to transform a dead body into a symbol, the body first has to be “de-individualized.” Only then can it be “reframed within a constructed communal understanding of its significance” (McEvoy and Conway 2004, 561). Even when national symbols have a “single name and a single body” (Verdery 1999), like Nelson, Napoleon, Garibaldi, Washington, these human beings had to be turned into national symbols.…”

Signs of trouble: Semiotics, streetscapes, and the Republican struggle in the North of Ireland

“…As noted previously, ethnosectarian conflict has reinforced a contested heritage that endures today. Curiously, as Graham and Whelan (2007: 476) contend, the Peace Process “was fashioned so as to avoid creating mechanisms for addressing the legacy of the past, not least the commemoration of the fatalities of the Troubles” (see McEvoy and Conway, 2004). Filling that vacuum, actors and stakeholders in the political tourism industry tend to maintain their rigid positions for purposes of performing heritage to an external audience.…”

Harnessing the Power of the Past? Lord Hoffmann and the Belmarsh Detainees Case

“…Kieran McEvoy and Heather Conway have suggested, in an article published in this journal, that one of the most important functions of law is its memorializing capacity.`The resort to law itself may be viewed as an attempt to fix historical meaning, to shape how events or individuals are to [be] remembered.' 54 We should be clear, though, about the potentially distorting effect of this memorializing process.`A certain amount of conscious dissembling' on the part of judges, the Harvard legal scholar David Shapiro once wrote,`is an appropriate, even a necessary, way of maintaining a sense of connection with the past.' 55 I will turn later to consider the effects of the distorting effects that this process of dissembling might have on law and legal reasoning.…”