Histoire, mémoire et droit : les usages juridiques du passé

Abstract : The debate over the “memorial laws” that developed in France since 2005 catalyzed a discussion on the relationship between law, history and collective memory. While Law cannot and, above all, should not write history, there are actually numerous connections between the Law and the past that render the past a true legal object. Law is, indeed, part of a past that can be juridically organized. Hence, the claim that Law is a social phenomenon implies not only that it can affect the social context but also that it is inscribed in a given context. In this regard, the past that the Law aims to organize exercises an influence over its formation and its application. Furthermore, the past can be the basis of the Law’s legitimacy and authority. At the same time, the Law participates in the organization of the past. If the past needs to be represented or rebuilt in order to become an object of knowledge, the Law can not only regulate, guide and organize those representations, but it can also build them itself, thus contributing to the establishment of an appeased collective memory. The frequency and variety of the Law’s references to the past demonstrate their relevance and usefulness. However, a closer examination of the use of the past within the Law reveals that this use carries the seeds of potential misuse. If those risks were highlighted by the debate over the “memorial laws”, further critical examination relativizes the dangers of juridification of the past and stresses the need for a better articulation of the relationship between Themis, Mnemosyne and Clio.
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Ariana Macaya Lizano. Histoire, mémoire et droit : les usages juridiques du passé. Droit. Université Panthéon-Sorbonne - Paris I, 2014. Français. ⟨NNT : 2014PA010307⟩. ⟨tel-01982171⟩

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